Reliance General Insurance Company Limited vs Bhavik Bulk Carrier Pvt Ltd & 5S

1.0 This appeal is directed against the judgement and award dated 07.02.2011 passed by learned Motor Accident Claims Tribunal (Main), Kheda­Nadiad in Motor Accident Claim Petition No. 637 of 2008, wherein the Tribunal has awarded a sum of Rs. 446900/­ along with interest at the rate of 7.5% per annum from the date of claim petition till realization.

2.0 The original claimants had filed the aforesaid Motor Accident Claims Petition claiming compensation as per the structured formula in respect of death of Rameshbhai Desaibhai Talpada who died in a motor vehicle accident which occurred on 18.03.2008 near Ambika Society on Umreth­Dakor Road. The vehicles involved in the accident were the rickshaw No. GJ­23­T­2980 insured with the appellant­Insurance company and Tanker No. GJ6 U 5999 insured with opponent No.2­ Insurance company. The said claim petition came to be partly allowed by the Tribunal by awarding an amount of Rs.446900/­ by way of compensation along with interest @ 7.5 % per cent per annum from the date of the petition till its realization to the claimants. Being aggrieved by the same, the appellant – original opponent No. 3 has approached this Court by way of this appeal.

3.0 Learned advocate for the appellant contended that the driver of the vehicle No. GJ­23­2980 was holding licence to drive Non Transport vehicle as per Exh. 34 which was confirmed by the oral evidence of Regional Transport Officer, Kheda recorded below Exh. 47.

4.0 Learned advocate for the appellant submitted that the learned Tribunal ought to have appreciated that at the time of the accident, total 12 persons (including driver) were travelling in the vehicle against the permitted sitting capacity of 3+1 persons ( including driver) and said fact was proved as per the police paper. He further submitted that the considering the two statutory defences, driving licence and carrying of excess passengers than the permitted sitting capacity, the learned Tribunal ought to have exonerated the appellant­Insurance Company­ insurer of rickshaw GJ­23­T­2980. He further submitted 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 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 summary 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= 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 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 appeal is allowed and the following order is passed:

(i) The impugned judgment and award is quashed and set aside.

(ii) The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.

(iii) This Court has passed the aforesaid order in view of the fact that the Tribunal has not followed the procedure established by law and therefore the Tribunal may not be influenced by the order of this Court.

(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 award.

(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 and if already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.

(vii) 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.

(viii) 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.

(ix) R & P, if lying with this court, to be sent to the Tribunal forthwith.

(K.S.JHAVERI, J.) niru*