1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 263 OF 2004 1. Smt. Sharifa alias Safura Bi Shaikh, about 42 years of age, housewife. 2. Shri Ismail Shaikh, 3. Shri Jaffar Shaikh, 4. Miss Reshma Shaikh, 5. Miss Shabina Shaikh, all of major age at present jobless and presently r/o H.No.230, Housing Board, Gogol, Margao-Goa. ... Appellants versus 1. Shri Shaikh Hanif Shaikh Hussain, of major age, presently r/o H.No.LIG/FF/678, Housing Board, Davorlim, Margao-Goa. 2. The Oriental Insurance Co. Ltd. 2nd Floor, David House, above Bank of India, Margao-Goa. ... Respondents Shri V. G. P. Dukle, Advocate for the Appellants. Shri E. Afonso, Advocate for the Respondent No.2. 2 CORAM : F. M. REIS, J. DATE : 4TH FEBRUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award passed in Claim Petition No.3 of 2004 dated 10-8-2004. 2. Briefly, the case of the appellants is that they filed a claim under Section 163-A of the Motor Vehicles Act, 1988(Act, for short) claiming a compensation of Rs.2,50,000/- on account of the death of Yusuf Shaikh in a motor vehicle accident. It is their case that on 14-10-1997 at about 6.00 a.m., the deceased Yusuf was driving a rickshaw bearing No.GDZ-1241 belonging to the respondent No.1 to go to Benaulim from Margao and the rickshaw overturned which resulted in the death of the said Yusuf. It is further their case that the respondent No.1 failed to keep the rickshaw in a proper condition and its brakes were not functioning properly and as such filed the claim petition against the respondent No.1 who is otherwise his brother and owner of the rickshaw. The respondent No.1 filed his written statement and admitted that he was a registered owner of the rickshaw and further stated that he 3 had given it to his brother who died, and he had made all the arrangements for a mechanic to repair the said rickshaw from time to time. According to the said respondent, the rickshaw was insured and it was the duty of the respondent No.2 to make the payment. The respondent No.2 filed the written statement and it was their contention that they are not liable to pay any compensation as the case does not come within the provision of the Act, and an application under section 163-A of the Act was not maintainable. 3. The Tribunal after framing the issues has come to the conclusion that the respondent No.2 proved that the claim petition is liable to be dismissed as the same does not come within the scope of Section 163-A of the said Act. 4. Shri V. G. P. Dukle, learned Counsel for the appellants has assailed the impugned Judgment and submitted that the application under Section 163-A was maintainable in law. He further pointed out that the appellants are to be considered as third parties though they are the children of the deceased. The learned Counsel further submitted that though the appellants could claim compensation under the Workmen's 4 Compensation Act, however, it does not preclude them from raising a claim under Section 163-A. The learned Counsel further submitted that the Tribunal has misdirected himself to come to the conclusion that the claim petition was not maintainable. Learned Counsel further pointed out that all the points were raised by the appellants and they were not duly considered by the Tribunal whilst passing the impugned Judgment. 5. On the other hand, Shri E. Afonso, learned Counsel for the Respondent No.2 submitted that at the most, the appellants will be entitled for compensation under the Workmen's Compensation Act. He further submitted that the question of claiming for compensation when a party is not a third party does not arise under the provision of Section 163-A of the Act. Learned Counsel further submitted that the Tribunal has rightly come to the conclusion that the claim petition was not maintainable. 6. Having heard the learned Counsel and on perusal of the record, I find that according to the appellants they were entitled to file a claim petition under Section 163-A of the Act irrespective of the fact as to whether the deceased/driver was a third party or not, which is disputed 5 by the learned Counsel for the Respondent No.2. Both the learned Counsel have relied upon a number of Judgments in support of their rival contentions. Shri E. Afonso, learned Counsel for respondent No.2 has strenuously argued that unless a person is a third party the question of filing a claim petition would not arise. He further pointed out that the Tribunal has rightly dismissed the petition. 7. After hearing the learned Counsel for both the parties for some time, I find that the said aspect as to whether the claim petition under Section 163-A is maintainable or not irrespective of the fact that a person is a third party has not been dealt with by the Tribunal on the basis and grounds raised by both the Counsels whilst passing the impugned Judgment. This aspect is not disputed by both the Counsels and as such, I intimate to the learned Counsel that it would be appropriate that the matter be remanded to the learned Tribunal to decide the matter afresh after hearing both the parties. Both the learned Counsel as such submitted that all the contentions raised by both the parties be left open and the matter be remanded to the learned Tribunal to decide the claim petition afresh without being influenced by any of the observations made hereinabove. Both the learned Counsel further 6 submitted that no reason may be given for such remand as any such reason may influence the learned Tribunal whilst passing a fresh Judgment after remand. 8. In view of the above in the facts and circumstances of the above case, I pass the following :- ORDER 1. The appeal is partly allowed. 2. The Judgment and Award dated 10-8-2004 is quashed and set aside. 3. Claim Petition No.3 of 2004 is restored to the file of the Motor Accident Claims Tribunal. 4. The Tribunal is directed to decide the Claim Petition afresh after hearing both the parties, in accordance with law. 5. All contentions raised by the parties are left open. 6. In case any party decides to produce any evidence, they shall file an appropriate application and the same shall be decided by the learned Tribunal after hearing both the parties on its own merits. 7. The appeal is disposed of, accordingly with no order as to costs. 7 8. Parties are directed to appear before the learned Tribunal on 28-3-2011 at 10.00 a.m. F. M. REIS, J. RD