ORIENTAL INSURANCE CO LTD Vs. MAMAD UMAD ODHEJA

JUDGEMENT

(1.) THIS appeal under section 173 of the Motor Vehicles Act is at the instance of the Oriental Insurance Company Ltd., the insurer of the offending vehicle in a proceeding under section 163 -A of the Motor Vehicles Act (hereinafter referred to as "the Act") and is directed against an award dated 2nd January 2007 passed by the Motor Accident Claims Tribunal, Fast Track Court No.5, Kachchh at Bhuj in MAC Petition No.532 of 2005 thereby awarding a sum of Rs.4,89,500/ - with interest at the rate of 9% per annum from the date of filing of the application till realisation.

(2.) BEING dissatisfied, the Insurance Company has come up with this appeal. Mr Shelat, the learned advocate appearing on behalf of the appellant has raised a pure question of law in support of the appeal. Mr Shelat contends that the claim -application has been filed under section 163 -A of the Act on the allegation that while the predecessor -in -interest of the claimants was driving a motorcycle owned by opponent No.1, a buffalo came in front of the motorcycle, as a result, he could not control the same and was seriously injured resulting in his death. Thus, the claim -application was filed under section 163 -A of the Act making the owner of the motorcycle as opponent No.1 and insurer of the said motorcycle as opponent No.2. Mr Shelat further points out that it is the definite averment of the claimants that the victim used to earn Rs.8000/ - a month by virtue of his office as supervisor with the registered contractor of Adani Port and in support of such claim, the claimants have also produced the certificate of monthly income of Rs.8000/ -. By pointing out the said averment, Mr Shelat contends that on the face of the averment made in the claim -application itself, the learned Tribunal should have rejected the claim, as section 163 -A proceeding is available only to the heirs of those victims whose annual income is less than Rs.40,000/ -. None appears on behalf of th claimants.

(3.) AFTER hearing Mr Shelat appearing on behalf of the appellant and in view of specific provision contained in section 163 -A of the Act which has also been highlighted by a three -judge Bench of the Supreme Court in the case of Deepal Girishbhai Soni and Ors. vs. United India Insurance Co. Ltd., 2004 5 SCC 385, I am of the view that the learned Tribunal below by following the principle laid down in Order 7 Rule 11 of the Code should have rejected the application even on the basis of the averment made in the claim -application.