NATIONAL INSURANCE COMPAY v. JETHABHAI BHANJIBHAI MAKWANA & 3

========================================================= NATIONAL INSURANCE COMPAY - Appellant(s) Versus JETHABHAI BHANJIBHAI MAKWANA & 3 - Defendant(s) ========================================================= Appearance : MR DAKSHESH MEHTA for Appellant(s) : 1, None for Defendant(s) : 1, MR MEHUL S SHAH for Defendant(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 MR SURESH M SHAH for Defendant(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 RULE SERVED for Defendant(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 07/03/2012 ORAL JUDGMENT

By way of this appeal, the present appellant-original opponent No.3 has challenged the judgement and award dated 15.03.2010, passed by the Motor Accident Claims Tribunal(Auxi.), FA/2946/2010 JUDGMENT Dhrangadhra, in M.A.C.P. No.76 of 2005, whereby the tribunal has partly allowed the claim petition and awarded compensation in a sum of Rs.3,49,500/- to the claimants with interest at the rate of 9% per annum from the date of filing the claim petition till its realization.

The brief facts leading to filing of this appeal are that on 26.02.2005 one accident occurred between two Rickshaws bearing registration Nos.GJ-13-T-923 and GR-X-2652, near Dhar road, Dhrangadhra and due to which one Mukeshbhai Jethabhai Makvana expired. Therefore, the legal heirs of the deceased filed claim petition being M.A.C. P. 76 of 2005 before the Tribunal for compensation. The Tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated herein above against which the present appeal is filed by the appellants-original opponent No.2.

Learned counsel for the appellant contended that the Tribunal has committed an error in awarding compensation to the claimants. He FA/2946/2010 JUDGMENT further contended that the tribunal has already awarded Rs.50,000/- as interim compensation to the claimants under Section 140 application. He further contended that in view of the provision of Section 163(B), the application under Section 163 of the M.V. Act application is prohibited.

I have heard learned counsel for the appellant and perused the materials on record. I find that the Tribunal has committed an error in permitting the claimants to file an application under Section 163-A as they had already filed an application under section 140 of the M.V. Act for interim compensation and the Tribunal has awarded Rs.50,000/- as interim compensation. Therefore, the application filed under section 163-A is contrary to the provisions of Section 163(B) of the M.V. Act. Therefore the judgenment and award of the Tribunal is required to be quashed and set aside. Hence, the same is quashed. Therefore, it is directed to the Tribunal to decide the claim petition u/s 166 of the M.V. Act. Out of the amount, which has been deposited by the Insurance Company Rs.50,000/- will be given to the claimants with interest and cost, if it has not been withdrawn by the claimants and FA/2946/2010 JUDGMENT rest of the amount be refunded to the Insurance Company, if it is lying with the Tribunal. Now, the matter has to be tried under u/s 166 of the M.V. Act.