APPU KIRANKUMAR KSHATRIYA Vs. ANIRUDHSINH BHARATSINH SARVAIYA

JUDGEMENT

(1.) Ms. Yogini Upadhyay learned advocate for the petitioner submits that the petitioner is before this Court challenging the order below Exhibit-63 passed in M.A.C.P. No.166 of 1999 dtd. 4/5/2013 passed by the M.A.C.T. (Main), Kachchh at Bhuj. Ms. Upadhyay submitted that the Tribunal has erred in allowing Exhibit- 63 filed by respondent No.2 by observing that it has already passed an order under Sec. 163-A of the Motor Vehicles Act (for short, "the Act"), which is final in nature by relying upon the judgment in the case of Oriental Insurance Company Ltd. v. Dhanbai Kanji Gadhvi , 2011 (2) G.LR. 1534 and thereby, barred the claimant's side from proceeding under Sec. 166 of the Act. Ms. Upadhyay submits that by way of order dtd. 20/7/2009 passed in Special Civil Application No.1273 of 2009, on a request made by the learned advocate who appeared for the claimant in that matter, the claimant showed their willingness to proceed with M.A.C.P. No.166 of 1999 under Sec. 166 of the Act. It was submitted by the advocate concerned that the claimants would not withdraw any amount deposited in Fixed Deposit under Sec. 163-A of the Act. Ms. Upadhyay submitted that the request was found to be reasonable and thereby, the Tribunal was directed to give priority to the hearing of M.A.C.P. No.166 of 1999 and accordingly, direction was issued to expeditiously dispose of the matter, preferably on or before 30/11/2009.

(2.) It is submitted by learned advocate Ms. Upadhyay that the Tribunal, in spite of the order of this Court, had failed to expeditiously dispose of the matter nor did the Tribunal make any request to this Court for extending the time period and has thereby failed to adhere to the directions given by this Court to decide the matter on merits. Ms. Upadhyay, by placing reliance upon the judgment of this Court in case of Pushpalattaben Navinchanda v. Gujarat State Road Transport Corporation passed in Special Civil Application No.3313 of 2016 dtd. 24/9/2018, categorically submitted that the claim petition is of the year 1999 and even if the claimants voluntarily accepts compensation under Sec. 163-A before 18/4/2004, they cannot be debarred from proceedings under sec. 166 of the Act. She submits that the order under sec. 163-A of the Act was passed on 3/1/2000 and thus, stated that the law does not debar the claimants from claiming compensation under Sec. 166 of the M.V. Act, more so, when the order was passed by this Court on 20/7/2009 in Special Civil Application No.1273 of 2009 permitting to proceed under sec. 166 of the Act.

(3.) Countering the arguments, learned advocate Mr. Dakshesh Mehta for respondent no.3 submitted that the day when the matter came to be proceeded with, the Insurance Company had moved application Exhibit-63 by relying upon the judgment in the case of Oriental Insurance Company Ltd. v. Dhanbai Kanji Gadhvi , 2011 (2) G.LR. 1534 and therefore, the claimant cannot be permitted to pursue the claim petition under Sec. 166 of the Act, particularly, when the claimant had already obtained an order sec. 163-A of the Act. Mr. Mehta has also placed reliance on the judgment rendered in Hansaben @ Hansbai Budharam Maheshwari Wd/o. Budharam Aatmaram Malshi Danicha & others, 2016 SCC Online Guj 8444 and submitted that following the judgment in Oriental Insurance Company Ltd. v. Dhanbai Kanji Gadhvi 's case (supra), the Tribunal has declared that petition under Sec. 163-A as not maintainable and thus, the only recourse would be to prefer appeal against the said order. Mr. Mehta further stated that once the claimant has obtained compensation under sec. 163-A of the Act, he is precluded from proceeding further in the petition under Sec. 166 of the Act.