1. By way of these appeals, appellant – Insurance Company has challenged the common judgment and award dated 05.06.2009 in Motor Accident Claims Petition No.570 of 2008 and 571 of 2008, filed under Section 163-A of the Motor Vehicles Act, passed by the Motor Accident Claims Tribunal(Auxi), Rajkot, whereby the Tribunal has awarded Rs.2,81,500/- and Rs.2,65,500/- respectively, together with interest at the rate of 9% p.a. from the date of this application till the realization.
2. Learned advocate for the appellant has contended that though the Tribunal has exonerated the appellant-Insurance Company in MACP Nos.568 of 2008 and 569 of 2008, which were also arose from the same accident, therefore, the Tribunal has erred in not exonerating the appellant-Insurance Company in MACP Nos.570 of 2008 and 571 of 2008. Learned advocate for the appellant has relied upon the decision of Apex Court in case of National Insurance Company Vs. Sinitha and Others reported in 2011(13) Scale 84.
3. I have heard learned counsel for the appellant and perused the record as well as common order passed by the Tribunal. It is apparent that arising out of the same accident, two claim petitions were filed under Section 163-A of the Act and another two claim petitions were filed under Section 166 of the Act before the Tribunal and the Tribunal has passed the common judgment and award. In the said judgment, the Tribunal on Page-44, Paragraph No.35 has observed as under:-
“So far as liability of opponents in Claim Petition No.568/2008 and Claim Petition No.569/2008 is concerned, as discussed above only opponents No.3 being the owner of the Truck No.GJ3W8195 is liable to pay the amount of compensation to the injured petitioners as co tort feasors under the vicarious liability. It is admitted fact that Insurance Policy of Truck No.GJ3W8195 was in force at the time of accident. Hence, opponent No.4 being the Insurance Company of Truck No.GJ3W8195 is liable to satisfy the award, which may be passed against opponent No.3 as insurer under Section 149 of M.V.Act. Claim Petition No.568/2008 and Claim Petition No.569/2008 against opponent No.1 and 2 is not maintainable under Section 166 of the M.V.Act, hence, opponent No.1 and 2 is exonerated from the liability. Hence, I answer issue No.2 accordingly.”
4. By the aforesaid common judgment and award, the Tribunal has held all the opponents liable to pay the compensation in MACP Nos.570 of 2008 and 571 of 2008, which were filed under Section 163-A of the Act and the Tribunal has exonerated original opponent Nos.1 and 2 in MACP Nos.568 of 2008 and 569 of 2008, which were filed under Section 166 of the Act. It is apparent that the Tribunal has not dealt with liability issue in present under challenged claim petitions. Prima-facie it appears that the issue of negligence is required to be examined seriously, in view of the decision in case of Sinitha's Case (Supra).
5. Accordingly, the order dated 05.06.2009 qua Motor Accident Claims Petition No.570 of 2008 and 571 of 2008 is quashed and set aside. The matters are remanded to the Tribunal for considering the matters afresh. The Tribunal is directed to decide the matters, within two years from the date of receipt of this order. However, to protect the interest of the original applicants, the Tribunal shall invest the entire amount lying with it in FDR on long terms basis and the interest accrued thereon shall be accumulated. But, if any amount has been already withdrawn, necessary set-of will be given. Orders regarding disbursement of the amount of deposit shall be passed by the Tribunal at the time of disposal of the final claim petitions. Both the appeals stand disposed of accordingly. R & P to be sent back to the concerned Tribunal, forthwith.
..mitesh..
[K.S.JHAVERI, J.]