LAWS(GJH)-2012-2-319

NEW INDIA ASSURANCE CO LTD Vs. KASHMIRABEN BHARATBHAI

Decided On February 16, 2012
NEW INDIA ASSURANCE CO. LTD. Appellant
V/S
KASHMIRABEN BHARATBHAI Respondents

JUDGEMENT

(1.) THOUGH served none appears for the respondents no. 4 & 5.

(2.) THIS appeal is directed against the judgement and award dated 27.09.2005 passed by learned Motor Accident Claims Tribunal, Surendranagar in Motor Accident Claims Petition No. 148 of 2003, wherein the Tribunal has awarded a sum of Rs. 4,39,167/- along with interest at the rate of 9% per annum from the date of application till realization.

(3.) 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. 5.1 In the case of /National Insurance Company Ltd. Vs. Sinitha and Others/, reported in /2011(13) SCALE 84 and 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.