ORDER
D.N. Patel, J.
1. The present petition has been preferred against the order dated 8th September, 2006 below. Exh. 26 in Motor Accident Claims Petition No. 23 of 2005 passed by the Motor Accident Claims Tribunal (Auxiliary), Gandhidham, Kutch, whereby the petitioner company is denied the right of cross-examination of the petitioner.
2. I have heard the learned Counsel for the petitioner who has submitted that the original applicants preferred an application under Section 163A of the Motor Vehicles Act, where the negligence is not to be proved. But so far as age and income of the applicants is concerned, affidavit was tendered so that on the basis of the age and income, compensation can be calculated. It is submitted by the learned Counsel for the petitioner that the person who has filed the affidavit ought to have allowed the cross-examination by the petitioner so far as correctness of age and income is concerned. This aspect of the matter has not been properly appreciated by the trial Court. It is also submitted by the learned Counsel for the petitioner that as per Rules 229 and 230 of the Gujarat Motor Vehicles Rules, 1989, if the amount claimed is more than Rs. 10,000, the procedure as per Order 19 of the Code of Civil Procedure ought to be followed by the Trial Court and the petitioner ought to have been allowed to cross-examine the person who has filed the affidavit. He has also relied upon the decision rendered by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni v. The United India Insurance Co. Ltd. reported in : AIR2004SC2107 as well as the decision in the case of The Oriental Insurance Co. Ltd. v. Hansraj Kodala reported in : [2001]2SCR999 . In the aforesaid two judgments, it has been pointed out that when an application is preferred under Section 163-A of the Motor Vehicles Act, 1988, for the amount of more than Rs. 10,000, the procedure enshrined in Section 168 of the Act of 1988 ought to be followed. This aspect of the matter has also not been properly appreciated by the Trial Court and hence the impugned order requires to be quashed and set aside and the petitioner may be permitted to cross-examine the person who has filed affidavit giving age as well as income of the deceased.
3. I have heard the learned Counsel for the respondents who has submitted that in fact, whenever as application is preferred under Section 163 A of the Act 1988, nothing is required to be proved. Negligence is not to be proved at all. Only on the basis of the age and income, compensation must be calculated by the petitioner and the same is to be awarded. The order passed by the Tribunal is absolutely true, correct and in consonance with the facts and the provisions of the Act of 1988 and the Rules of 1989.
4. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, in my view, the order dated 8th September, 2006 below Exh. 26 in Motor Accident Claims petition No. 23 of 2005 passed by the Motor Accident Claims Tribunal, Gandhidham requires to be quashed and set aside for the following facts and reasons:
The original applicants preferred an application under Section 163A of the Motor Vehicles Act, 1988. An affidavit has been filed therein, whereby age as well as income of the deceased has been given for the calculation of the compensation. Looking to the provisions of the Act, there is no need of any proof of negligence in such type of cases. But so far as verification of age and income is concerned, the petitioner has all rights to cross-examine after receiving affidavit.
Looking to the provisions of Gujarat Motor Vehicles Rules, 1989. especially Rules 229 and 230, it appears that whenever an application is preferred for more that Rs. 10,000, precedure as referred in Order 19 of the Code of 1907 ought to be followed. This aspect of the matter has also been decided by the Hon'ble Apex Court in the case of The Oriental Insurance Co. Ltd. v. Hansraj Kodala (supra) and in the case of Deepal Girishbhai Soni v. The United India Insurance Co. Ltd (supra), to the effect that the procedure referred in Section 168 of the Act of 1988 must be followed so far as verification of the age and income is concerned, whenever an application is preferred under Section 163A of the Act of 1988 for the amount of more than Rs. 10,000. In view of these decisions as well as the provisions of the Rules of 1989, the petitioner has got all rights to cross-examine the person who has filed the affidavit.
5. In view of the aforesaid reasons and judicial pronouncements, the impugned order dated 8th September, 2006 below Exh. 26, in Motor Accident Claims petition No. 23 of 2005 passed by the Motor Accident Claims Tribunal, Gandhidham-Kutch is hereby quashed and set aside. The petitioner is permitted to cross-examine the person who has filed affidavit. Rule made absolute accordingly with no order as to costs.