1. These appeals are directed against the judgement and award dated 27.10.2004 passed by learned Motor Accident Claims Tribunal (Main), Kheda at Nadiad in Motor Accident Claim Petitions No. 5 & 6 of 2003, wherein the Tribunal has awarded a sum of Rs. 1,19, 500/- and Rs. 1,54,500/- respectively along with interest at the rate of 9% per annum from the date of application till realization.
2. According to the claimants, when deceased Lakhiben and Jabuben were returning from work in a tractor the accident in question took place as a result of which they sustained serious injuries and ultimately succumbed to the same. The legal heirs therefore filed the aforesaid claim petitions wherein the impugned award came to be passed which is challenged in the present appeal.
3. The main contention raised by learned Advocate for the appellant is that there has been breach of condition of the policy and 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. It is contended that the tractor in question in this case was meant only for agricultural uses and the deceased were travelling on the tractor wherein no passenger could be carried. He submitted that in the case of New India Assurance Company Limited Vs Asha Rani and others, reported in 2002(2) GLR 1001 (=AIR 2003(1) SC p 607 the Apex Court has clearly held that insurer of the goods vehicle will not be liable to pay compensation in respect of death or bodily injury to passengers carried in a goods vehicle.
5. 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 163A 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.
6. 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.
7. 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 matters afresh.
8. In the premises aforesaid, the following order is passed:
(i) The judgement and award impugned in the present appeals are hereby quashed and set aside.
(ii) The matters are remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove.
(iii) The Tribunal shall hear and decide the matters 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) 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.
(v) The claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(vi) The interest that may be accrued on the said deposit henceforth shall not be disbursed. The amount shall be disbursed as per the final decision of the Tribunal.
(vii) If any amount has been withdrawn by the claimants the same shall be given set off/adjusted at the time of final award.
(viii) It is clarified that this Court has not expressed any opinion on the merits of the case.
9. With the above observations, the appeals stand disposed of. R &P if lying with this court to be sent back forthwith. Cross Objections have already been disposed of and hence may not be shown on board.
(K.S.JHAVERI, J.) Divya//