1.0 This appeal is directed against the judgment and award dated 27.06.2008 passed by learned Motor Accident Claims Tribunal ( Auxi) Fast Track Court, Navsari in Motor Accident Claim Petition No. 184 of 2006, wherein the Tribunal has awarded a sum of Rs. 273300/ along with interest at the rate of 9% per annum from the date of petition till realization and with proportionate costs.
2.0 On 19.02.2005 Kashmirsingh Kishansingh Sardar was travelling in Tempo No. GJ15X7366. The said tempo met with an accident near Dungri, National Highway No.8, near Overbridge, Raliya Fadilya, Taluka:District: Valsad and therefore, Kashmirsingh died in the accident. The original claimants therefore, filed application under Section 163A of the Motor Vehicles Act, 1988 ( for short “the Act”) on claiming compensation in the sum of Rs. 416605/. The Tribunal has passed the aforesaid award in claim petition filed under Section 163A of the Act, which is challenged in this appeal.
3.0 Learned advocate appearing for the appellantInsurance Company contended that twhen the accident occurred, the deceased was not the cleaner in the said tempo but he was a gratuitous passenger in the said tempo and hence, the Insurance Company is not liable to pay compensation as it does not cover the risk of gratuitous passengers.
4.0 Learned advocate appearing for the respondent submitted that deceased was not gratuitous passenger, but he was cleaner in the vehicle. He submitted that the claimants have filed their affidavit at Exh. 2 wherein they have stated that deceased was serving as Cleaner in Tempo No. GJ15T 7366 which met with the accident on 19.02.2005.
5.0 As a result of hearing and perusal of the record, it is found that the learned Tribunal has wrongly held on the basis of F.I.R that the deceased was Cleaner in the tempo involved in the accident. However, it is difficult from the perusal of the F.I.R that the deceased was cleaner. With a view to arrive at conclusion that deceased was Cleaner, neither original owner of the vehicle was called upon as witness nor any documents in support thereof were produced . Therefore, it is difficult to hold that the deceased was Cleaner in the vehicle involved in the accident.
6.0 It is by now well settled law that application under Section 163A of the Motor Vehicles Act cannot be treated at par with an application under section 140 of the Act. Under section 140 of the Act only fixed compensation is payable whereas it is not the case in an application under Section 163A of the Act. As per the law laid down by the Apex Court, award under Section 163A is an alternative to an award under Section 166 of the Act and therefore application under Section 163A cannot be disposed of in a summary manner without considering the issue of liability of the Insurance Company and also other issues.
7.0 In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84 (= 2012 (2) SCC 356), it is held that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing a 'fault' ground.
8.0 I have gone through the judgement of the Tribunal. The Tribunal has proceeded on the basis that under Section 163A of the Act involvement of particular identified vehicle is only required to be proved. It appears that the Tribunal has not considered the facts and law mentioned hereinabove.. Resultantly, the Tribunal is required to reconsider the matter in view of the aforesaid facts and ratio laid down by the Apex Court.
9.0 In the premises aforesaid, the appeal is allowed and the following order is passed:
(i) The impugned judgment and award is quashed and set aside.
(ii) The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
(iii) This Court has passed the aforesaid order in view of the fact that the Tribunal has not followed the procedure established by law and therefore the Tribunal may not be influenced by the order of this Court.
(iv) The amount invested in Fixed Deposit, as directed by this Court, shall be continued in Fixed Deposit and the claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and award.
(v) It is, however, made clear that interest accruing on the said Fixed Deposit shall be accumulated and will be adjusted at the time of the final award.
(vi) The amount awarded and if already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.
(vii) Since the matter is pending since long, the Tribunal is directed to dispose of the case as expeditiously as possible and in any case not later than two years from the date of receipt of the writ of this Court.
(viii) It is observed that this Court has not entered into the merits of the matter and the Tribunal shall consider the same afresh, without being influenced by the fact that this Court has quashed its earlier judgment and award.
(ix) R & P, if lying with this court, to be sent to the Tribunal forthwith.
(K.S.JHAVERI, J.) niru*