1.0 This appeal is directed against the judgementt and award dated 02.12.2010 passed by learned Motor Accident Claims Tribunal ( Aux), Patan in Motor Accident Claim Petition No. 273 of 2003, wherein the Tribunal has awarded a sum of Rs. 154500/ along with interest at the rate of 7.5% per annum.
2.0 The original claimants had filed application under Section 163A of the Motor Vehicles Act, 1988 ( for short “the Act”) on account of death of Dipikaben Vinubhai Parmar who was travelling in the Tractor along with her father. The accident occurred on 12.03.2003 at about 10.00 hours. The Tribunal has passed the aforesaid award in claim petition filed under Section 163A of the Act, which is challenged in this appeal.
3.0 The main contention raised by learned Advocate for the appellant is that the insured Tractor was having sitting capacity of one person only i.e. driver and in the policy of insurance, the risk of any of the employees is not covered. 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.
4.0 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.
5.0 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.
6.0 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.
7.0 In the premises aforesaid, the judgement and award impugned in the present appeal is hereby quashed and set aside. The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove. 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. 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. The interest that may be accrued on the said deposit shall not be disbursed. Ultimately, the amount shall be disbursed as per the final decision of the Tribunal and the amount, if already disbursed, shall be given set off.
8.0 It is clarified that this Court has not expressed any opinion on the merits of the case.
(K.S.JHAVERI, J.) niru*