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Judgment
Y.B. Bhatt, J.—Heard learned counsel for the respective parties.
This is an appeal u/s 173 of the Motor Vehicles Act, 1988, at the instance of the insurance company, challenging the judgment and award passed by the Motor Accidents Claims Tribunal (Aux.) Kutch at Bhuj, u/s 163-A of the said Act.
It is pertinent to note that the said award has been passed by order below Exh. 6, in the nature of an interim award, while the main claim petition u/s 166, namely, Motor Accident Claim
Petition No. 927 of 1996 is yet pending.
The learned counsel for the appellant contends that the Tribunal has erred in law in treating the said claim petition u/s 163-A as a claim of an interim nature, and has dealt with it in a manner similar to a claim u/s 140 of the said Act. It was contended that on account of this approach on the part of the Tribunal, the appellant insurance company had no opportunity of leading appropriate evidence and/or meeting the contentions of the original claimants in these proceedings u/s 163-A, According to learned counsel for the appellant, the law as laid down by the Supreme Court does not permit the claimants to pursue a claim u/s 163-A of the Act, whether by way of an interim application or even by way of a final decision, as long as the main claim u/s 166 of the said Act is pending adjudication. In other words, the learned counsel for the appellant contends that the claims filed u/s 163-A and Section 166 of the said Act are in the nature of alternative remedies and only one of such remedies can be pursued, whereas the two remedies cannot be pursued simultaneously or in succession. We are obliged to accept this contention on part of learned counsel for appellant in view of the clear decision of the Apex Court in the case of Oriental Insurance Co. Ltd. v. Hansraj-bhai V. Kodala, 2001 ACJ 827 (SC). It is, therefore, obvious that on the facts of the case, since the main claim petition u/s 166 of the Act is pending, the Tribunal had no jurisdiction either to entertain or to decide a claim u/s 163-A of the said Act. In the premises aforesaid, the impugned award u/s 163-A is required to be quashed and set aside. We hold and direct accordingly.
The facts of the case, however, require further directions to be given in respect of the amount which may have been deposited by the appellant before the Tribunal, in respect of the impugned award u/s 163-A of the said Act.
On the facts of the case, it is apparent that appellant was directed to deposit with the Tribunal an amount of Rs. 50,000 as a condition of ad interim relief, by an order dated 19.2.1998, passed in Civil Application No. 11224 of 1997. However, the same order directed the Tribunal to pass appropriate orders as to investment and disbursement in respect of this amount.
We can proceed only on the assumption that the Tribunal has in fact passed such orders as directed in the aforesaid order.
In view of the fact that the impugned award u/s 163-A has been quashed and set aside, it would normally follow that the appellant insurance company would be entitled to restoration of the status quo ante. However, we are mindful of the fact that the main claim u/s 166 is yet pending adjudication and are also mindful of the fact that in such a claim petition, it is always open to the claimants to prefer an application u/s 140 of the said Act.
In the premises aforesaid and on the facts of the case, we hold by consensus between the learned counsel for the parties that it would be open to the respondents-original claimants to prefer an application u/s 140 in the claim petition, now pending u/s 166 of the said Act.
As and when an application u/s 140 is filed in the main claim petition u/s 166, the Tribunal would normally grant the same.
It is clarified that the amount of Rs. 50,000 which has been disbursed and/ or invested in favour of the original claimants under the earlier ad interim orders, shall for the present, not be disturbed and shall be adjusted against the amount that may be awarded by the Tribunal on the adjudication of the claimants'' application u/s 140 of the said Act, and if necessary, adjusted against the final order u/s 168 of the said Act.
However, this direction as to retention by the claimants of the amount already disbursed, shall be subject to the claimants filing and undertaking before the Tribunal to the effect that claimants shall pursue the main claim petition u/s 166 of the Act and obtain an adjudication thereon on merits and in accordance with law and that they shall not permit this application to be withdrawn or dismissed for default, or be disposed of in any other manner and that the amount disbursed in favour of the applicants shall be adjusted in the final award u/s 168. If such an undertaking is not filed along with an application u/s 140 of the said Act, it shall be open to the appellant insurance company to apply to the Tribunal for restitution of the amount already disbursed in favour of the original claimants.
This appeal is, therefore, allowed to the aforesaid extent with no order as to costs. Decree accordingly.
It requires to be noted that on the facts and circumstances noted hereinabove and in view of the directions consequently issued, it would be appropriate for the Tribunal to expedite the hearing of the main claim petition u/s 166 of the said Act and to dispose of the same as early as possible in consonance with the date of its filing and the workload before the Tribunal.
Direct service is permitted.