Oriental Insurance Company Ltd. - Appellant vs Bhudhabhai Jeevabhai Devipujak and 2

Honourable Mr. Justice K.S. Jhaveri

The above appeals are appeals directed against the judgement and award dated 27.11.2007 passed by learned Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claim Petition No. 783 of 2002, wherein the Tribunal has awarded a sum of Rs. 1,54,500/- along with interest at the rate of 7.5% per annum from the date of application till realization. The original claimants had filed application u/s 163-A of the Motor Vehicles Act, 1994 to get the compensation on structured formula basis and have claimed Rs. 3,00,000/- for the death of deceased Ramjibhai @ Bhothabhai Budhabhai Devipujak in a motor vehicular accident. The Tribunal has passed the aforesaid award, which came to be challenged by preferring the present appeals.

The main contention raised by the learned Advocate for the appellant that the deceased was travelling in the goods vehicle and thereby there is breach of policy. Therefore, the Insurance Company is not liable to pay compensation. 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.

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 163A 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 163A 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 judgement and award impugned in the present appeal is hereby quashed and set aside. The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove. 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. 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. The interest that may be accrued on the said deposit shall not be disbursed.

Record and Proceeding if nay lying with the Court to be sent to the concerned Tribunal forthwith. It is clarified that Court has not expressed any opinion on the merits of the case. The Appeal stands disposed of accordingly.