ORIENTAL INSURANCE CO LTD & 1 v. ALI BHURA SAMA & 12

========================================================= ORIENTAL INSURANCE CO LTD & 1 - Appellant(s) Versus ALI BHURA SAMA & 12 - Defendant(s) ========================================================= Appearance : MR KK NAIR for Appellant(s) : 1 - 2. RULE NOT RECD BACK for Defendant(s) : 1 - 13. MR.HIREN M MODI for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 19/04/2012 ORAL JUDGMENT

1.0 This appeal is directed against the judgement and award dated

25.01.2011 passed by learned Motor Accident Claims Tribunal (Aux.), (FTC-2), Kachchh at Bhuj in Motor Accident Claim Petition No. 588 of FA/3434/2011 JUDGMENT 2007, wherein the Tribunal has awarded a sum of Rs. 436500/- 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 Vahed All Sama 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 trolley attached to the tractor had no insurance of the insurance company; that the deceased was travelling in the trolley as passenger and therefore, the claimants are not entitled for getting compensation from the appellant. He further submitted that the learned Tribunal failed to appreciate that even the trolley not shown as involved in the accident in collusion with its owner does not have a policy to carry labourers much less passengers therein. The policy is a liability only policy i.e. Act only policy and no additional premium was either charged or paid by the insured and, therefore, the Insurance Company is not liable to satisfy any award that may be passed against the owner insured. He further submitted that 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 FA/3434/2011 JUDGMENT '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 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 I 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 FA/3434/2011 JUDGMENT 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 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 FA/3434/2011 JUDGMENT 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. (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.)