ORIENTAL INSURANCE CO LTD Vs. DHANBAI KANJI GADHVI

JUDGEMENT

(1.) By way of present petition, the petitioner has has challenged the order dated 23.12.2005 passed by the Motor Accident Claim Tribunal (MACT), Bhuj-Kutchh in M.A.C. Petition No. 759 of 1997 below Exh. 49. The Tribunal has passed the following order:

(2.) The case of the petitioner is that the respondents are the original claimants who have filed M.A.C. Petition No. 759 of 1997 before the Motor Accident Claims Tribunal, Bhuj-Kutchh against the present petitioner who is insurer of the Taxi No. GJ-12-C-9484 who dashed with the Luna drove by the deceased namely Kanji Keshavbhai Gadhvi and due to this accident happened on 17.06.1997 he succumbed to the injuries. The respondents are the legal heirs and the representatives of the late Shri Kanji Keshavbhai Gadhvi who have filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). The respondents have also filed an application under Section 163(A) of the Act against the present petitioner in the same proceedings and the same is treated by the respondents as interim compensation application. After hearing the parties, the learned Tribunal has partly allowed the application filed by the respondents under Section 163(A) of the Act and ordered the petitioner to pay a sum of Rs. 2,65,500/- with 12% interest vide order dated 18.10.2000. The amount as per the order of the Tribunal has been deposited by the petitioner. Furthermore, the claimants have already withdrawn the amount and investment order is also passed and the amount is invested in the fixed deposits as per the order of the Tribunal. The claimants have already exhausted a remedy available under the Act, i.e get compensation under Section 163(A) of the Act. The petitioner has filed an application below Exh. 37 with a prayer that the applications filed under Section 166 may be rejected as per the decision of the Apex Court. The Tribunal has granted stay for further proceedings of the petition filed under Section 166 of the Act till further order vide its order dated 25.06.2002. The petitioner has challenged the award passed by the Tribunal under Section 163(A) before this Court by First Appeal Stamp No. 3019 of 2002 but the same was dismissed on the ground of delay. After lapse of more than 5 years, the respondents have filed an application below Exh. 49 with a prayer that the respondents opt/elect to proceed with the application under Section 166 of the Motor Vehicles Act and they are undertaking to give credit of the amount disbursed and invested. The same was strongly opposed by the petitioner by making application contending inter-alia that claimants cannot be permitted to opt/elect to proceed with the application filed under Section 166 of the Act. After hearing the parties, the Tribunal has allowed the said application on 23.12.2005 and permitted the respondents herein to proceed with the application under Section 166 of the Motor Vehicles Act and further directed that the amount already disbursed and invested in favour of the claimants received by them under Section 163 (A) shall be adjusted in the final award to be passed under Section 168 of the Motor Vehicles Act. Hence, this petition.

(3.) Learned advocate for the petitioner-insurance company has raised the contention that as per Section 163(A) of the Act, it will not be open to the respondents to proceed with the proceedings under Section 166 of the Act. He invited attention of this Court to the decision of the Apex Court in case of Deepal Girishbhai and others vs. United India Insurance Co. Ltd., Baroda reported in 2004(5) SCC 385 wherein more particularly paras 59, 60, 61 held as under: