1. This appeal is directed against the judgment and award dated 16.05.2011 passed by the Motor Accident Claims Tribunal, Rajkot (Rural) in Motor Accident Claims Petition No. 1216 of 2005, wherein the Tribunal has awarded a sum of Rs. 1,08,250/- along with interest and proportionate costs.
2. The claimant 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. 5,00,000/- on account of injuries and permanent disablemet caused to the claimant in the vehicular accident occurred on 07.06.2005 wherein the two offending vehicles i.e. Matador No. GJ-3V- 3839 and Matador No. GJ-7U-7025 were involved.
3. Mr. Dakshesh Mehta, learned Advocate 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 and therefore the Tribunal clearly fell in error while passing the impugned award.
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 85, 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 matter 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 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 years from the date of receipt of writ of this order.
(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) The amount shall be disbursed as per the final decision of the Tribunal.
(viii) 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.
(ix) 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.
8. The Appeal is allowed to the aforesaid extent. R & P, if lying with this Court to be sent back forthwith.
(K.S.JHAVERI, J.) Divya//