1.0 This appeal is directed against the judgement and award dated 30.11.2009 passed by learned Motor Accident Claims Tribunal (Main), Rajkot in Motor Accident Claim Petition No. 46 of 2009, wherein the Tribunal has awarded a sum of Rs. 3,16,700/ along with interest at the rate of 9% per annum from the date of application till realization.
2.0 According to claimants, Punabhai Mulabhai Chavda was travelling as pillion rider on the motor cycle No. GJ6BP6355. The driver of the motor cycle was driving the vehicle in an excessive speed and in rash and negligent manner. Because of this, the motor cycle dashed with an unknown vehicle. Punabhai sustained severe injuries and succumbed to the injuries. The legal heirs of the deceased therefore filed the claim petition under Section 166 of the M.V. Act but subsequently it was converted into under the Section 163A of the M.V. Act. The Tribunal has passed the aforesaid award, which came to be challenged by preferring the present appeal.
3.0 Learned advocate appearing for the appellant submitted that the defence of the appellant was not considered by the learned Tribunal and the Tribunal has relied on the decision of Chhatisgarh High Court in case of United India Insurance Co. Ltd versus Smt. Pramila Devi and others reported in 2009 (2) T.A.C 239 9 Chhattis..
4.0 Learned advocate for the appellant placed reliance on the decision of the Hon'ble Supreme Court in case of United India Insurance Co. Ltd, Shimla versus Tilak Singh and others reported in (2006) 4 Supreme Court Cases 404 wherein in paragraph No. 18 and 21 it is held as under:
18. Thus, even under the 1939 Act the established legal position was that unless there was a specific coverage of the risk pertaining to a gratuitous passenger in the policy, the insurer was not liable. We find that clause (ii) of the proviso to Section 95(1) has been eliminated while drafting Section 147 of the 1988 Act. Under subsection (1)(b) under the 1988 Act, compulsory policy of insurance required under the statute must now provide against any liability which may be incurred by the owner of the vehicle.
“in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.”
21. In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence, it did not cover the risk of death of or bodily injury to a gratuitous passengers.
5.0 Learned advocate for the appellant further placed reliance on the decision of the Hon'bel Supreme Court in case of Oriental Insurance Company Ltd. versus Sudhakaran K.V and others reported in (2008) 7 Supreme Court Cases 428 wherein it is held that insurer is not liable to pay compensation in respect of pillion rider in terms of statutory cover mandated by Section 147 when the accident has taken place owing to rash and negligent driving of the motor carrying the pillion rider concerned and such a pillion rider is not to be treated as a “third party” under Section 147 and such a pillion rider would be covered only in case additional cover is purchased under the contract of insurance.
6.0 Learned advocate for the appellant further contended that policy in question was issued as per provisions of M.V.Act, 1988 and more particularly section 147 of the M.V.Act risk of the deceased being pillion rider riding on the insured vehicle was not covered under policy being “Act policy”. Moreover, if no additional premium is paid by insured to cover the risk of such pillion rider passenger then insurance company cannot be saddled with liability. As per Section 147 of the M.V. Act, only risk of such persons mentioned in it is covered and unless there is specific agreement between appellant and insured appellant is not liable to pay compensation under provisions of M.V. Act. He placed reliance on the decision of the Hon'ble Supreme Court in case of United India Insurance Co. Ltd, Shimla versus Tilak Singh and others reported in (2006) Supreme Court Cases 404.
7.0 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.
8.0 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.
9.0 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.
10.0 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.
11.0 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*