1. These appeals are directed against the judgement and award dated 04.05.2002 passed by learned Motor Accident Claims Tribunal, Kutch in Motor Accident Claims Petition No. 352 & 353 of 2000, wherein the Tribunal has awarded a sum of Rs. 308500/- & 329500/- respectively along with interest at the rate of 9% per annum from the date of application till realization.
2. The claimants filed the claim petition under the provisions of Section 163-A of the M.V. Act to get compensation on structured formula basis and claimed Rs. 4,83,000/- on account of accidental death of one Shri Yogesh Parmar, who expired due to injuries sustained in the vehicular accident occurred on 03.06.1996 wherein tanker bearing registration no. GJ-12-T-7330 is involved.
3. Mr. Dakshesh Mehta, learned Advocate for the appellant submitted that no vehicle number was mentioned in the panchnama. He submitted that the Tribunal clearly fell in error while passing the impugned award as the defences of the Insurance Company were not considered by the Tribunal. He submitted that condition no. 27 specifically prohibits carriage of hazardous substance in the vehicle.
4. 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.
5. 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 163-A of the Act by pleading and establishing a 'fault' ground.
6. 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 matters in view of the aforesaid facts and ratio laid down by the Apex Court.
7. In the premises aforesaid, the following order is passed:
(i) The judgement and award impugned in the present appeals are hereby quashed and set aside.
(ii) The matters are remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove.
(iii) The Tribunal shall hear and decide the matters as early as possible and in any case within a period of two years 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 claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(vi) The interest that may be accrued on the said deposit shall not be disbursed. The amount shall be disbursed as per the final decision of the Tribunal.
(vii) If any amount has been withdrawn by the claimants the same shall be given set off/adjusted at the time of final award.
(viii) It is clarified that this Court has not expressed any opinion on the merits of the case.
8. The Appeals are allowed to the aforesaid extent. R& P if lying with this Court may be sent back to the Tribunal.
(K.S.JHAVERI, J.) Divya//