: When the aforementioned appeals came up for admission hearing, Mr. Modi, Ld. Advocate appeared for the respondent no. 1 – original claimant in all these matters.
2. Mr. Shelat, Ld. Advocate for the appellant – Insurance Company, so also Mr. Modi, Ld. Advocate for the respondents in all these matters, at the outset, submitted that the respondent no. 2 in these appeals is the owner of the vehicle. Mr. Shelat, Ld. Advocate for the appellant – Insurance Company submitted that considering the nature of the appeals and since it has been agreed that the appeals can be finally heard and decided, in that situation, the interest of respondent no. 2 cannot be said to be conflicting interest qua the appellant as ultimate request is to remand the claim petitions to the concerned Tribunal and no order on merit is to be invited from this Court.
3. Mr. Shelat, Ld. Advocate for the appellant – Insurance Company, so also Mr. Modi, Ld. Advocate for the respondents – original claimants requested that these appeals may be finally heard and decided. They passed on relevant papers for my consideration.
4. All the appeals are admitted.
5. As stated above, with the consent of the learned advocates representing both the sides, these appeals are taken up for final hearing. All these appeals are directed against the common judgment and award rendered on 27/7/2011 by the Ld. M.A.C. Tribunal [Aux.] Surat at Vyara in M.A.C. Petition No. 432/1997 and other allied Claim Petitions. The Tribunal passed the impugned judgment and award under section 163-A of the Motor Vehicles Act [for short 'the Act'].
6. Mr. Shelat, Ld. Advocate for the appellant – Insurance Company, at the outset, submitted that on behalf of the appellant Insurance Company a basic contention was raised before the Tribunal that the injured claimants, so also the deceased persons, were travelling in a goods carriage vehicle as passengers and they sustained injuries and on account of the injuries, some of the passengers died. It is submitted that despite such basic contention having been raised by the appellant – Insurance Company, the Tribunal, in the impugned judgment and award, relying upon section 163-A of the Act, in para. [11], categorically observed that “It is, therefore, manifestly clear that when the claim petition has been made under section 163-A of the Act, the provisions of sections 147, 149 and 170 and other provisions have to be ignored.” Mr. Shelat, Ld. Advocate for the appellant –
application is filed under section 163-A of the Act, no legal contentions raised by the Insurance Company under the Act should be considered, but should be ignored. It is, therefore, submitted that since the entire approach of the Tribunal was erroneous, the Tribunal, therefore, neither examined the case of the claimants that the injured as well as deceased were not gratuitous passengers, but were labourers/ owners of the goods nor the Tribunal examined on merits the defence or the contentions raised by the Insurance Company that they were gratuitous passengers. Mr. Shelat, Ld. Advocate for the appellant, in above view of the matter, relied upon the decision rendered in the case of National Insurance Co. Ltd. v/s. Sinitha reported in [2012] 2 S.C.C. 356 and more particularly the observations made by the Hon'ble Apex Court in para. 33 of the said decision. Mr. Shelat, Ld. Advocate for the appellant, therefore, submitted that since the Tribunal has not examined the aforementioned issue on merits, the appeals may be allowed and the impugned common judgment and award rendered by the Tribunal may be set aside and the matters may be remanded.
6.1. Mr. Shelat, Ld. Advocate for the appellant, submitted that at the time of filing of these appeals, the statutorily required amount of Rs.25,000/- each has been deposited with the concerned Tribunal and about said deposit, appropriate direction may be issued.
7. Mr. Modi, Ld. Advocate for the respondents – original claimants, at the outset, submitted that the claimants adduced cogent evidence in support of their claim petitions before the concerned Tribunal and in that view of the matter, no interference is warranted in the impugned judgment and award rendered by the Tribunal. It is further submitted that, however in the impugned judgment and award, the Tribunal has observed that once the application under section 163-A of the Act is made, the Tribunal shall have to ignore any such defence raised by the Insurance Company and considering the impugned judgment and award, it is true that the Tribunal did not examine on merits either the case of the claimants or even the defence of the Insurance Company. It is, therefore, submitted that the appeals may be dismissed as the claimants have established their case by adducing cogent evidence.
8. As seen above, the only question involved in these appeals is in a narrow compass as to whether the Tribunal can examine the statutory defence raised by the Insurance Company while dealing with claim petition arising under section 163-A of the Act or not? In this respect, considering the impugned judgment and award rendered by the Tribunal, it transpires that considering the provisions contained in section 163-A of the Act, the Tribunal concluded that when the claim petition has been filed under section 163-A of the Act, the provisions of sections 147, 149 and 170 and other provisions have to be ignored. As against this, in Sinitha's case [supra] decided by Hon'ble the Apex Court, examining section 163-A of the Act, together with other relevant provisions of the Act, categorically observed that it is open to the owner or the Insurance company, as the case may be, to defeat a claim under section 163-A of the Act by pleading and establishing through cogent evidence, a “fault” ground [wrongful act or neglect or default]. It has further been observed in para. 33 in the said decision that it is, therefore, doubtless that section 163-A of the Act is founded under the “fault” liability principle.
9. In above view of the matter, this Court is of the opinion that the Tribunal, while dealing with the claim petition, should have examined on merits the case pleaded by the claimants, so also the contention raised by the Insurance Company. When such is the situation, this Court is of the opinion that the matters are required to be remanded to the concerned Tribunal for the purpose of deciding on merits the aforementioned issue together with other issues which may be raised by either party. In the interest of justice, it should be further observed that if either party desires to lead any further evidence, their rights should be kept open.
10. Seen in the above context, these appeals deserve to be allowed and the impugned common judgment and award rendered by the Tribunal deserve to be set aside and the claim petitions should be ordered to be remanded to the concerned Claim Tribunal. It is hereby specifically made clear that this Court has not at all touched the merits of the matter, namely the case pleaded by the claimants or the contention raised by the Insurance Company on merits. The Tribunal, therefore, shall be at liberty to decide all these contentions on merits without in any way influenced by the instant order.
award rendered on 27/7/2011 by the Ld. M.A.C. Tribunal [Aux.] Surat at Vyara in M.A.C. Petition No. 432/1997 and other allied Claim Petitions are set aside. M.A.C. Petition No. 432/1997 and other allied claim petitions are ordered to be remanded to the concerned Tribunal in light of the observations made hereinabove in this judgment. It is hereby ordered that if either party desires to adduce further evidence, the Tribunal shall permit the party/ parties to adduce further evidence. The Tribunal shall decide the above referred claim petitions on merits in accordance with law at the earliest, preferably within three months from the date of receipt of communication of this order. As stated above, this Court has not examined the merits of the matter and the Tribunal shall decide these claim petitions on merits uninfluenced by any observations made by this Court in this judgment.
12. So far as the amount of Rs.25,000/- each which came to be deposited by the appellant – Insurance Company with the concerned Tribunal at the time of presentation of these appeals is concerned, the Tribunal shall invest the said entire amount in fixed deposit in any nationalized bank for the period of six months or till the final disposal of the aforementioned claim petitions, whichever period is earlier. The deposit shall be by way of cumulative deposit. The disbursement of the said amount shall depend upon the final outcome which shall be arrived at by the Tribunal.
13. Since the appeals are allowed, the civil applications for stay lose their survival value and stand disposed of accordingly.
(J.C.UPADHYAYA, J.) * Pansala.