1.0 This appeal is directed against the judgement and award dated 25.11.1997 passed by the learned Motor Accident Claims Tribunal (Main), Kutch at Bhuj in Motor Accident Claim Petition No. 489 of 1995 wherein the Tribunal has awarded a sum of Rs.1,69,500/ along with interest at the rate of 15% per annum from the date of the petition till deposit.
2.0 On 26.06.1995, one Chandubha Mohapatsinh was proceeding from Chopadwa to Chiral Moti Salt Works with Tanker No, G.T.Y. 3509 belonging to the opponent No.5 original opponent No.1 and when he reached near salt office on Madi Chiral Salt works road, and when he was in process to take the tanker in reverse the same turned turtle. As a result thereof, he sustained serious injuries and succumbed to the same. The legal heirs of the deceased therefore, filed the aforesaid claim petition under Section 163A of the Motor Vehicles Act before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 The main contention raised by learned Advocate for the appellant is that the deceased himself was driver and he was sole negligent for the accident in question; 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.
4.0 On the facts of the case the contention of the Insurance Company is that the deceased was the driver and he was sole negligent for the accident in question. While deciding the application under Section 163 A of the Act, the learned Tribunal has not decided the issue of negligence. 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 summarily manner without considering the issue of liability of the Insurance Company and also other issues.
5.0 In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84, 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.
6.0 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.
7.0 In the premises aforesaid, the judgement and award impugned in the present appeal is hereby quashed and set aside. The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove. The Tribunal shall hear and decide the issue of negligence afresh as early as possible and in any case within a period of one year from the date of receipt of writ of this order. 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. The interest that may be accrued on the said deposit shall not be disbursed. It is open for both the parties to lead their evidence to prove the negligence.
8.0 It is clarified that Court has not expressed any opinion on the merits of the case. The Appeal stands disposed of accordingly.
(K.S.JHAVERI, J.) niru*