1. This appeal is directed against the judgement and award dated 25.09.2009 passed by learned Motor Accident Claims Tribunal, Vadodara in Motor Accident Claims Petition No. 1155 of 2007, wherein the Tribunal has awarded a sum of Rs. 3,21,300/- 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. 4,57,833/- on account of accidental death of one Shri Mahendrasinh Gohil, who expired due to injuries sustained in the vehicular accident occurred on 04.03.2007 in which the offending vehicle i.e. Car No. GJ-5/VV-9866 is involved.
3. Learned Advocate for the appellant submitted that the Tribunal clearly fell in error while passing the impugned award. He submitted that the Tribunal ought to have appreciated that the deceased driver himself was a tort feasor for the accident and that the driver of the vehicle while driving the vehicle steps into the shoes of the owner of the vehicle and in that view of the matter the legal heirs and representatives of such driver are not entitled to claim any compensation whatsoever. He submitted that the deceased was also not possessing a valid and effective driving licence at the time of accident.
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:
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 claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
The interest that may be accrued on the said deposit shall not be disbursed. The amount shall be disbursed as per the final decision of the Tribunal.
If any amount has been withdrawn by the claimants the same shall be given set off/adjusted at the time of final award.
It is clarified that this Court has not expressed any opinion on the merits of the case.
R & P, if lying with this Court shall be sent back forthwith.
8. The Appeal is allowed to the aforesaid extent.
(K.S.JHAVERI, J.) Divya// Top