1. On 29.02.2012 this Court had passed the following order:
“In view of sick note of Ms. Bhatt, learned advocate for the respondent no. 3 matter is adjourned to 07.03.2012. It is clarified that if Ms. Bhatt is not in a position to appear on the next date of hearing, she shall make alternate arrangement failing which appeal shall be proceeded on merits exparte.”
2. Today, Mr. Nachiket Mehta, learned advocate appearing for Mr. Shalin Mehta has mentioned that Ms. Ami Bhatt, learned advocate appearing for the respondent no. 3 has conveyed through him that she is unable to appear today and therefore the matter may be adjourned. As the last order is very clear, this Court is not inclined to adjourn the matter.
3. This appeal is directed against the award dated 17.05.2011 passed by learned Motor Accident Claims Tribunal (Aux), Morbi in Motor Accident Claims Petition No. 180 of 2008, wherein the Tribunal has awarded a sum of Rs. 2,73,500/- along with interest at the rate of 7.5% per annum from the date of application till realization.
4. According to the claimant, on 26.05.2008, Shri Harjibhai Ravjibhai was riding motor cycle bearing registration no. GJ- 03-AK-7315, when the motor cycle dashed with a truck as a result of which said Harjibhai sustained injuries and succumbed to the same. The claimants being legal heirs therefore filed the aforesaid application under Section 163-A of the Motor Vehicles Act wherein the impugned award came to be passed which is challenged in the present appeal.
5. Mr. Nachiket Mehta, learned Advocate for Mr. Shalin Mehta for the appellant submitted that the Tribunal clearly fell in error while passing the impugned award as the defences of the appellant were not considered by the Tribunal. He submitted that the Tribunal ought to have appreciated that the claim was made on behalf of the driver of the insured vehicle and that he had driven the motor cycle with the consent and permission of the owner and therefore he had stepped into the shoes of the owner of the vehicle.
6. It is by now well settled law that application under section 163-A 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 163- A of the Act. As per the law laid down by the Apex Court, award under Section 163-A is an alternative to an award under Section 166 of the Act and therefore application under Section 163-A cannot be disposed of in a summary manner without considering the issue of liability of the Insurance Company and also other issues.
7. In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 85 (=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 163-A of the Act by pleading and establishing a 'fault' ground.
8. I have gone through the judgement of the Tribunal. The Tribunal has proceeded on the basis that under Section 163-A 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. In the premises aforesaid, the following order is passed:
(i) The award impugned in the present appeal is hereby quashed and set aside.
(ii) The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove.
(iii) The Tribunal shall hear and decide the matter as early as possible and in any case within a period of two year from the date of receipt of writ of this order.
(iv) In the meanwhile the awarded amount shall be invested in a fixed deposit by the Tribunal with any nationalized bank in the name of the Nazir of the Tribunal and the receipt thereof shall be retained with the Tribunal.
(v) The interest that may be accrued on the said deposit shall not be disbursed. However, the amount shall be disbursed as per the final decision of the Tribunal.
(vi) If any amount is withdrawn by the claimants, it shall be open to the insurance company to recover from the owner of the vehicle. The payment of F.D shall be subject to result of the claim petition.
(vii) It is clarified that Court has not expressed any opinion on the merits of the case.
10. The Appeal is allowed to the aforesaid extent. R & P if lying with this Court shall be sent to the Tribunal forthwith.
(K.S.JHAVERI, J.) Divya//