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Judgment
Honourable Mr. Justice K.S. Jhaveri
This appeal is directed against the judgement and award dated 7th May 2007 passed by learned Motor Accident Claims Tribunal (Aux), Mehsana in Motor Accident Claims Petition No. 631 of 2005, wherein the Tribunal has awarded a sum of Rs. 49,030/- along with interest at the rate of 7-1/2% per annum from the date of application till realization. According to the claimants, on the date of the incident I.e. on 22nd August 204 he applicant and his uncle, Husenbhai Rasulbhai were proceeding towards Patan from Mehsana on a motorcycle bearing No. GJ- 2A-2061. It is the case of the claimants that while the said motorcycle was being driven on its correct side of the road and at a reasonable speed, all of a sudden, a group of monkeys crossed the road from the adjoining field due to which the applicant applied brakes. However, the motorcycle dashed with a monkey due to which motorcycle skidded resultantly both of them fell down on the road and received serious injuries. The claimants therefore filed the aforesaid application u/s 163-A of the Motor Vehicles Act wherein the impugned award came to be filed which is challenged in the present appeal.
Ms. Lilu Bhaya, learned Advocate for the appellant submitted that the owner is not a third party and his risk is not covered by the insurance policy and therefore the Tribunal clearly fell in error while passing the impugned award.
It is by now well settled law that application u/s 163-A of the Motor Vehicles Act cannot be treated at par with an application u/s 140 of the Act. u/s 140 of the Act only fixed compensation is payable whereas it is not the case in an application u/s 163-A of the Act. As per the law laid down by the Apex Court, award u/s 163-A is an alternative to an award u/s 166 of the Act and therefore application u/s 163-A cannot be disposed of in a summary manner without considering the issue of liability of the Insurance Company and also other issues.
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 u/s 163-A of the Act by pleading and establishing a ''fault'' ground. I have gone through the judgement of the Tribunal. The Tribunal has proceeded on the basis that u/s 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. 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 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 order.
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 & 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.
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.
Appeal is partly allowed with no order as to costs.