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Judgment
Honourable Mr. Justice KS Jhaveri
This appeal is directed against the judgement and award dated 10.01.2007 passed by learned Motor Accident Claims Tribunal, (Main) Dahod in Motor Accident Claims Petition No. 6988 of 2004 (Old No. 968/204), in so far as the Tribunal has awarded a sum of Rs. 3,53,640/-along with interest at the rate of 9% per annum from the date of application till realization and the appellant was held liable to pay 50% thereof.
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. 10,00,000/-on account of accidental death of one Shri Sattarbhai Anuswala, who expired due to injuries sustained in the vehicular accident occurred on 08.02.2002 when Sattarbhai was sitting as pillion on a motor cycle which dashed with a truck bearing registration no. GJ-13-T-6692.
Learned Advocate for the appellant submitted that the deceased was travelling in the offending vehicle as an unauthorized passenger and therefore the Tribunal clearly fell in error while passing the impugned award. He submitted that the owner of the motor cycle had not paid extra premium for the pillion rider and therefore insurance company is not liable to pay compensation. He also submitted that the driver of the motorcycle was not holding a valid driving licence and therefore also the insurance company shall not be liable to pay compensation.
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, , 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 judgment and award impugned in the present appeal is hereby quashed and set aside qua appellant as the original opponents no. 1 to 5 have not challenged the said award.
ii. The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove as regards the liability of insurance company qua the opponents.
iii. 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.
iv. 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.
v. The claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
vi. 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.
vii. If any amount has been withdrawn by the claimants the same shall be given set off/adjusted at the time of final award.
viii. It is clarified that this Court has not expressed any opinion on the merits of the case.
The Appeal is allowed to the aforesaid extent.