ORIENTAL INSURANCE CO LTD & 1 v. PRABHULAL DAURAM MOCHI & 3

========================================================= ORIENTAL INSURANCE CO LTD & 1 - Appellant(s) Versus PRABHULAL DAURAM MOCHI & 3 - Defendant(s) ========================================================= Appearance : MR KK NAIR for Appellant(s) : 1 - 2. MR.HIREN M MODI for Defendant(s) : 1, RULE UNSERVED for Defendant(s) : 2, RULE SERVED for Defendant(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 19/04/2012 ORAL JUDGMENT

1.0 This appeal is directed against the judgement and award dated

16.03.2010 passed by learned Motor Accident Claims Tribunal (Aux.), (FTC-2), Kachchh at Bhuj in Motor Accident Claim Petition No. 582 of FA/3402/2011 JUDGMENT 2007, wherein the Tribunal has awarded a sum of Rs. 2, 04, 500/- along with interest at the rate of 9% per annum from the date of application till realization.

2.0 The original claimants had filed application under Section 163-A of the Motor Vehicles Act, 1988 ( for short “the Act”) on account of death of Kiran Prabhulal Mochi who expired due to injuries sustained in a vehicular accident that occurred on 18.08.2007 when a tractor-trolley bearing registration No. GJ-1-AQ-3037 turned turtle and fell in the water trench due to negligent driving of the driver in a rash and negligent manner..

3.0 Learned advocate for the appellant contended that deceased was a gratuitous passenger and therefore, the claimants are not entitles for getting compensation from the appellant. He further submitted that there has been breach of condition of the policy and it is open to the owner or insurance company, as the case may be to defeat a claim under Section 163A of the Act by pleading and establishing a 'fault' ground.

4.0 It is by now well settled law that application under section 163-A of the Motor Vehicles Act cannot be treated at par with an application under Section 140 of the Act. Under Section 140 of the Act only fixed compensation is payable whereas it is not the case in an application under Section 163-A of the Act. As per the law laid down by the Apex FA/3402/2011 JUDGMENT Court, award under Section 163-A is an alternative to an award under Section 166 of the Act and therefore application under Section 163-A 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, reported in 2012 (2) SCC 356 it is held that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163-A of the Act by pleading and establishing a 'fault' ground.

6.0 have gone through the judgement of the Tribunal. The Tribunal has proceeded on the basis that under Section 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

7.0 In the premises aforesaid, the appeal is allowed and 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 FA/3402/2011 JUDGMENT 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 award. (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 and if 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. FA/3402/2011 JUDGMENT (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. niru*

(K.S.JHAVERI, J.)