1. This appeal is directed against the judgement and award dated 31.05.2011 passed by learned Motor Accident Claims Tribunal, (Aux) Narmada at Rajpipla below Ex. 52 in Motor Accident Claims Petition No. 84 of 2010, in so far as the Tribunal has awarded a sum of Rs. 3,88,500/- along with interest at the rate of 9% per annum from the date of application till realization.
2. The claimants filed the aforesaid claim petition under the provisions of Section 163-A of the M.V. Act to get compensation on structured formula basis and claimed Rs. 4,17,500/- on account of accidental death of one Shri Narayanbhai Gujjar, who expired due to injuries sustained in the vehicular accident occurred on 10.01.2010 when a truck dashed with the motorcycle driven by one Shri Rameshbhai Suthar on which the deceased was a pillion rider.
3. Mr. Nanavati, learned advocate appearing for the appellant raised the following contentions:
(i) that the Tribunal clearly fell in error while passing the impugned award;
(ii) that though specific defence is raised before the Tribunal, the Tribunal has not considered the same;
(iii) that it was the specific case of the appellant before the Tribunal that the incident took place on account of the deceased's negligence and that he was not holding a valid driving licence and inspite of the same the Tribunal has not considered the said aspects;
(iv) that the Tribunal ought to have appreciated that the driver of the Motorcycle was not duly licenced to drive the motorcycle involved in the accident as on the date of accident as he was holding a licence to drive LMV only;
(v) that the driver was the son of opponent no. 1 i.e. owner of the vehicle and having stepped into the shoe of the owner, the Insurance Company is not liable to pay compensation;
(vi) that the original opponent no. 1 - owner of the motorcycle inspite of knowing that the driver who is his son was not holding a valid and effective driving licence allowed him to drive the motorcycle;
(vii) that the claimants have not joined the driver Rameshbahi
(viii) that the Tribunal has committed an error in considering the claim of the claimants under Section 163A of the Motor Vehicles Act and therefore the same required to be allowed.
3.1 In support of his submission, he relied upon the decision of the Ningamma And Another v. United India Insurance Company Limited, (2009) 13 SCC 710 as well as National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84(= 2012(2) SCC 356). Mr Nanavati has also relied upon Sections 6 & 7 of the M.V. Act.
4. Mr. D.N. Pandya, learned advocate appearing for the respondents claimants supported the award passed by the Tribunal and submitted that no interference is called for. He, however, could not controvert the issue of son of the owner driving the motorcycle in question.
5. 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.
6. In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84 and 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.
6.1 In the case of Ningamma and Another (supra), deceased was traveling on Hero Honda Motor Cycle, which he borrowed from its real owner for going from Ilkal to his native place Gudur. When the said motor cycle was proceeding on Ilkal- Kustagl, National Highway, a bullock cart proceeding ahead of the said motor cycle carrying iron-sheet suddenly stopped and consequently deceased-Ramappa who was proceeding on the said motor cycle dashed against it. Consequent to the aforesaid incident, he sustained fatal injuries over his vital part of body and on the way to Govt. Hospital, Ilkal, he died.
6.2 The Apex Court has held therein that when a vehicle is borrowed from its original owner and meets with an accident without involving any other vehicle, claim under Section 163-A is not maintainable wherein the owner of the vehicle himself is involved.
7. In the present case the deceased was a pillion rider on a vehicle which did not belong to the driver but the father of the driver- the original opponent No.1. In the present case also the driver stepped into the shoes of the owner of the vehicle.
However the Tribunal has considered the driving licence of the original opponent no. 1 who is the father of the actual driver as claimed by the appellant and the owner of the motorcycle in question.
8. It is required to be noted that the title clause of the claim petition shows the original owner who is Rameshwarlal Babulal Suthar. However, as per the facts of the vehicle Rameshbhai Suthar was driving the vehicle on 10.01.2010 and the Tribunal has mentioned that he is opponent no. 1. In fact the opponent no. 1 is Rameshwarlal Suthar who is the owner of the vehicle and he is said to be possessing a licence for LMV. According to the appellant, as per the pleadings more particularly ground (D), Rameshbhai is the son of opp no. 1 Rameshwarlal Suthar and Rameshbhai was driving the motorcycle. The Tribunal has proceeded on the footing that Rameshbhai Suthar is the owner of the vehicle possessing the said licence. It appears that the owner of the vehicle is Rameshwarlal and there is nothing on record to show that Rameshbhai who drove the motorcycle was possessing any licence. The Tribunal has proceeded on the footing that the original owner who was having licence was driving the vehicle which is not the case as per the appellant. If Rameshbhai was actually driving the vehicle he was not joined as a party.
Sections 6 & 7 of The Motor Vehicles Act, 1988 read as under:
“6. Restrictions on the holding of driving licences. - (1) No person shall, while he holds any driving licence for the time being in force, hold any other driving licence except a learner’s licence or a driving licence issued in accordance with the provisions of section 18 or a document authorising, in accordance with the rules made under section 139, the person specified therein to drive a motor vehicle.
(2) No holder of a driving licence or a learner’s licence shall permit it to be used by any other person.
(3) Nothing in this section shall prevent a licensing authority having the jurisdiction referred to in sub- section (1) of section 9 from adding to the classes of vehicles which the driving licence authorises the holder to drive.
7. Restrictions on the granting of learner’s licences for certain vehicles. - 9[(1) No person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.]
(2) No person under the age of eighteen years shall be granted a learner’s licence to drive motorcycle without gear except with the consent in writing of the person having the care of the person desiring the learner’s licences.”
9. In view of the above discussion and keeping in mind the principle laid down in the case of Ningamma & Anr. (supra) as well as National Insurance Co. vs. Sinitha (supra), I have no hesitation to hold that the matter is required to be adjudicated afresh considering the correct facts of the case.
10. In the result, the appeal is partly 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 order.
(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 & 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.
11. At this stage, Mr. Pandya, learned advocate for the claimants has requested to stay this order. Request is granted. The present order is stayed for a period of 90 days. However, it is clarified that the interest on the deposit payable to the claimants shall be stopped from the date of this judgement.
(K.S.JHAVERI, J.) Divya//