1. This appeal is directed against the award dated 27.06.2008 passed by learned Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claims Petition No. 885 of 2005, wherein the Tribunal has awarded a sum of Rs.
2,49,500/- along with interest at the rate of 7.5% per annum from the date of application till realization.
2. According to the claimants, on 14.02.2005, Shri Mahendrabhai Parmar was going on a motorcycle with his son, when an unknown vehicle dashed with the motorcycle as a result of which said Mahendrabhai sustained injuries and succumbed to the same. The claimants being legal heirs therefore filed the aforesaid application under Section 163-A of the Motor Vehicles Act wherein the impugned award came to be passed which is challenged in the present appeal.
3. Mr. Nanavati, learned Advocate for the appellant submitted that the Tribunal clearly fell in error while passing the impugned award as the defences of the appellant were not considered by the Tribunal. He submitted that the Tribunal ought to have appreciated that the claim was made on behalf of the driver of the insured vehicle against the owner and the insurance company for his own wrong and therefore the same cannot be accepted. He submitted that the Tribunal ought to have appreciated that the claimants should have filed claim petition against the owner and driver of the offending vehicle under the provisions of the Act.
4. Ms. A.M. Khakhariyawala, learned advocate appearing for the respondents supported the award passed by the Tribunal and submitted that no interference is called for. She submitted that the claim is of the year 2005 and therefore relying upon a decision of the Apex Court in the case of United India Insurance Co. Ltd vs. K.M. Poonam and Others reported in 2011 ACJ 917 wherein the Apex Court has directed the insurance company to pay amount of all the awards to the claimants and recover the amount in excess of its liability from the owner in execution without filing a separate suit, the same principle may be applied in the present case as well.
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 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.
6. In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 85 (=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.
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 matter in view of the aforesaid facts and ratio laid down by the Apex Court.
8. In the premises aforesaid, the following order is passed:
(i) The 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 year 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 interest that may be accrued on the said deposit shall not be disbursed. However, the amount shall be disbursed as per the final decision of the Tribunal.
(vi) If any amount is withdrawn by the claimants, it shall be open to the insurance company to recover from the owner of the vehicle. The payment of F.D shall be subject to result of the claim petition.
(vii) It is clarified that Court has not expressed any opinion on the merits of the case.
9. The Appeal is allowed to the aforesaid extent. R & P if lying with this Court shall be sent to the Tribunal forthwith.
(K.S.JHAVERI, J.) Divya//