1. This appeal is directed against the judgement and award dated 25th August 2010 passed by learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in Motor Accident Claims Petition No.17 of 1988, whereby the Tribunal has awarded a sum of Rs.1,63,,900/- along with interest at the rate of 9% per annum from the date of application till realization.
2. According to the claimants, on the date of the incident i.e. on 9th December 1997 deceased Paba Ratna Rabari had gone for grazing his goats and sheeps and at about 1.30 PM he was standing near the chakda rixa bearing No.GJ.12.V 5497 near petrol pump on Anjar Bhuj Road. AT that time a luxury bus bearing No.GJ.20.% 9833 came from Anjar side in a rash and negligent manner and dashed with the stationary chhakada rickshaw due to which the deceased was hit by the chhakada, who was standing near the chhakada, and received serious injuries. He was removed to hospital for treatment and he breathed his last during the course of treatment. The claimants therefore filed the aforesaid application under Section 163-A of the Motor Vehicles Act wherein the impugned award came to be passed by which the Tribunal has held insurance companies of both the vehicles as jointly and severally liable, which is challenged in the present appeal.
3. Mr. Nanavati, learned Advocate for the appellant – insurance company of chhhakada rickshaw submitted that there was no negligence on the part of the chhakada and even then the Tribunal has held both the vehicles jointly and severally. He further contended that the driver of the luxury bus was solely responsible for the accident as he was driving the bus rashly and negligently.
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 85, 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 question of contributory negligence. Therefore, the case is being remanded to the Tribunal for deciding the issue of contributory negligence.
7. In the premises aforesaid, 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 of the contributory negligence of both the vehicles.
(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 permitted to be withdrawn by the claimants upon its maturity.
(v) The Tribunal, while deciding the question of contributory negligence will hear both the parties. However, the applicants shall cooperate with the Tribunal if their presence is required.
(vi) 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.
(vii) 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.
(viii) R & P, if lying with this court, to be sent to the Tribunal forthwith.
Appeal is partly allowed with no order as to costs.
(K.S.Jhaveri, J.) *mohd