1.0 This appeal is directed against the judgementt and award dated 04.05.2011 passed by learned Motor Accident Claims Tribunal (Auxi.), FIRST APPEAL/2227/2011 25/11/2014 01:52:01 AM FA/2227/2011 2/5 JUDGMENT Bhavnagar in Motor Accident Claim Petition No. 853 of 2006, wherein the Tribunal has awarded a sum of Rs.264000/ along with interest at the rate of 7.5% per annum from the date of application till realization with proportionate costs.
2.0 On 11.11.2006 at about 7.00 P.M. Najabhai Rambhai along with his son and father was going in Truck No. GJ1X4608 with their goods and after paying the fare from Hindorana to Kathivadar. The driver was driving the vehicle in an excessive speed and in a rash and negligent manner. When the said truck reached between Jolapur to Viktor, the truck turned turtle. As a result of thereof, Najabhai sustained injuries and died on the spot. The original claimants had filed application under Section 163A of the Motor Vehicles Act, 1988 ( for short "the Act"). 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 contention raised by learned Advocate for the appellant is that deceased was travelling as unauthorized passengers in goods vehicle and therefore, the insurance company is not liable to pay the compensation; 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 In the case of Smt. Mallawaa etc. versus Oriental Insurance Co.
Ltd. and others reported in AIR 1999 SC 589, the Apex Court has held that the insurance company is not liable for death or injuries sustained by persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously.
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 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 FIRST APPEAL/2227/2011 25/11/2014 01:52:01 AM FA/2227/2011 4/5 JUDGMENT 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.
FIRST APPEAL/2227/2011 25/11/2014 01:52:01 AM FA/2227/2011 5/5 JUDGMENT
(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* FIRST APPEAL/2227/2011 25/11/2014 01:52:01 AM