1. This appeal is directed against the judgement and award dated 03.09.2005 passed by learned Motor Accident Claims Tribunal, (Main) Kheda in Motor Accident Claims Petition No. 34 of 2005, in so far as the Tribunal has awarded a sum of Rs. 4,00,000/- along with interest at the rate of 7.5% per annum from the date of application till realization.
2. The claimants filed the claim petition under the provisions of Section 163-A of the M.V. Act to get compensation on structured formula basis and claimed Rs. 4,00,000/- on account of accidental death of one Shri Udesing Shabhai Solanki, who expired due to injuries sustained in the vehicular accident occurred on when he was travelling in a truck bearing registration no. KA-23A-6434 which was being driven by the original opponent no. 1 in a rash and negligent manner as a result of which he fell down and the truck ran over him.
3. Mr. Sunil Parikh, learned Advocate appearing for Mr. Mehta for the appellant submitted that the deceased was travelling in the offending vehicle as an unauthorized passenger and therefore the Tribunal clearly fell in error while passing the impugned award. He submitted that the 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.
3.1 Mr. Parikh has stated that the cross objections shown on board has already been disposed of by this Court vide order date 09.09.2008 and the same has been wrongly notified.
4. 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 163-A 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.
5. 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 163-A of the Act by pleading and establishing a 'fault' ground.
6. 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 matter in view of the aforesaid facts and ratio laid down by the Apex Court.
7. In the premises aforesaid, the following order is passed:
(i) The judgement and award impugned in the present appeal is hereby quashed and set aside.
(ii) The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove. (iii)The Tribunal shall hear and decide the matter 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 thereafter 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.
8. The Appeal is allowed to the aforesaid extent.
(K.S.JHAVERI, J.) Divya//