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Judgment
N. Ananda, J.—Though matters are listed for orders, with the consent of learned counsel for parties, they are taken up for final disposal.
MFA No. 10329/2008 is filed by owner against the award made in MVC No. 4658/2007 raising several contentions.
MFA No. 11231/2008 is filed by claimants for enhancement of compensation.
Heard the learned counsel for parties.
The legal representatives of deceased Fazil Pasha have filed claim petition u/s 163A of Motor Vehicles Act, 1988 (for short, ''the Act''). Another injured person namely one Mahesha had filed MVC No. 4659/2007 u/s 166 of the Act. The Tribunal without bearing in mind the distinction between claim petitions filed u/s 163A and section 166 of the Act, clubbed both cases and framed common issues in relation to proof of negligence.
In a decision reported in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , the Supreme Court has held:-
Therefore, the victim of an accident or his dependants have an option either to proceed u/s 166 of the Act or u/s 163-A of the Act. Once they approach the Tribunal u/s 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed u/s 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.
The view taken by the Supreme Court in the aforestated decision has been agreed by the Supreme Court in the decision reported in Surender Kumar Arora and another Vs. Dr. Manoj Bisla and Others, .
The Tribunal should not have called upon claimants to establish negligence when they had approached Tribunal u/s 163A of the Act. Therefore, impugned award cannot be sustained. The claim petition filed in MVC No. 4658/2007 requires reconsideration. In view of remand of MFA No. 10329/2008, MFA No. 11231/2008 filed by claimants for enhancement of compensation does not survive for consideration for the present. In the result, I pass the following:-
ORDER
MFA No. 10329/2008 is accepted. The impugned award is set aside. The matter is remanded to Tribunal with a direction to consider claim petition in MVC No. 4658/2007 u/s 163A of the Act. The amount in deposit shall be refunded to appellant in MFA No. 10329/2008. The parties shall appear before Tribunal on 08.04.2013. Office shall forthwith communicate this order to Tribunal.
In view of remand order made in MFA No. 10329/2008, MFA No. 11231/2008 filed by claimants for enhancement of compensation is dismissed as having become infructuous for the present.
After the award is passed in terms of remand order, parties are at liberty to challenge the same as they deem fit. The other contentions urged herein are kept open.