NATIONAL INSURANCE COMPANY LIMITED v. UMARBHAI ALU LANGA & 5

========================================================= NATIONAL INSURANCE COMPANY LIMITED - Appellant(s) Versus UMARBHAI ALU LANGA & 5 - Defendant(s) ========================================================= Appearance : MS MEGHA JANI for Appellant(s) : 1, RULE SERVED for Defendant(s) : 1 - 6. MR SUNIL B PARIKH for Defendant(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/03/2012 ORAL JUDGMENT

These appeals are directed against the judgement and FA/4524/2006 JUDGMENT award passed by learned Motor Accident Claims Tribunal, Kutch at Bhuj in Motor Accident Claim Petitions No. 273, 277, 279, 282 & 295 of 2003 wherein the Tribunal has awarded a sum of Rs. 5,11,200/-, Rs. 345500/-, Rs. 204500/-, Rs. 204500/- and Rs. 4,08,500/- respectively along with interest and costs.

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 on account of injuries sustained by them/death in the vehicular accident occurred on 06.04.2003 wherein two Chhakda Rickshaw no. GJ-12-W 4129 & GJ-12-V 7180 and truck no. GJ-7-X 2299 were involved.

The main contention raised by learned Advocate for the appellant, Ms. Viraj Fojdar for Ms. Megha Jani is 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.

It is contended that the delivery van in question in this case was meant only for one person including driver and the deceased was travelling in the delivery rickshaw wherein no passenger could be carried. She submitted that in the case of New India Assurance Company Limited Vs Asha Rani and others, reported in 2002(2) GLR 1001 (=AIR 2003(1) SC p 607 the Apex Court has clearly held that insurer of the goods vehicle will not be liable to pay compensation in respect of death or bodily injury to passengers carried in a goods vehicle. FA/4524/2006 JUDGMENT

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 163A 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.

In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84 (=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 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 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 matters afresh.

In the premises aforesaid, the following order is passed: (i) The judgement and award impugned in the present appeals are hereby quashed and set aside. FA/4524/2006 JUDGMENT (ii)The matters are remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove. (iii)The Tribunal shall hear and decide the matters 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)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 order. (v)The interest that may be accrued on the said deposit henceforth shall not be disbursed. The amount shall be disbursed as per the final decision of the Tribunal. (vi)If any amount has been withdrawn by the claimants the same shall be given set off/adjusted at the time of final award. (vii)It is clarified that this Court has not expressed any opinion on the merits of the case.