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Judgment
Honourable Mr. Justice K.S. Jhaveri
1.0 This appeal is directed against the judgment and award dated 29.12.2009 passed by learned Motor Accident Claims Tribunal ( Auxi) and P.O. 1st F.T.C. Gondal, Camp at Dhoraji in Motor Accident Claim Petition No. 21 of 2009, wherein the Tribunal has awarded a sum of Rs. 4,62,833/- along with interest at the rate of 9% per annum. The original claimants had filed application u/s 163A of the Motor Vehicles Act, 1988 ( for short "the Act") on account of death of Bharatbhai Nathabhai Baldha in the motor vehicular accident occurred on 27.04.2005. The Tribunal has passed the aforesaid award in claim petition filed u/s 163A of the Act, which is challenged in this appeal.
2.0. The main contention raised by learned Advocate for the appellant is that the accident was caused due to sole negligence of the deceased who was driving his motor cycle in a rash and negligent manner. He submitted that the defense raised by the appellant before the Tribunal was not considered. He placed reliance on the decision of the Hon''ble Apex Court in case of Ningamma and Another Vs. United India Insurance Co. Ltd., wherein in para 20 it is held as under:
It was held in Oriental Insurance Co. Ltd vase that Section 163A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability u/s 163A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the MVA.
3.0. He further submitted that it is open to the owner or insurance company, as the case may be, to defeat a claim u/s 163A of the Act by pleading and establishing a ''fault'' ground.
4.0. It is by now well settled law that application u/s 163A 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 163A of the Act. As per the law laid down by the Apex Court, award u/s 163A is an alternative to an award u/s 166 of the Act and therefore application u/s 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, , it is held that it is open to the owner or insurance company, as the case may be, to defeat a claim u/s 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 u/s 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 and especially the fact that the owner himself is involved in the accident. 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: The impugned judgment and award is quashed and set aside.
The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
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.
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.
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.
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.
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.
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.
R & P, if lying with this court, to be sent to the Tribunal forthwith.
It is clarified that this Court has not expressed any opinion on the merits of the case.