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2001 DIGILAW 792 (JHR)

Md. Yunus v. Sahnaz Begum

2001-12-04

D.N.PRASAD, VINOD KUMAR GUPTA

body2001
ORDER The Court 1. Delay in filing the appeal is condoned. 2. The appeal is taken up for Admission today itself. 3. Mr. G.C. Jha. Advocate has appeared for the Respondent No. 7, the Oriental Insurance Company Ltd., at our instance. 4. This appeal is directed against the order dated 16.1.2001 passed by learned 5th Additional District Judge. Dhanbad exercising powers of Motor Accident Claims Tribunal whereby relying upon a Single Bench judgment of Patna High Court delivered on 22nd August. 2000 in Misc. Appeal No. 242 of 1999 National Insurance Company v. Layachi Devi and Ors., and several other related cases he has, even while allowing the claim of the claimants under Section 140 of the M.V. Act. 1988 (Respondent Nos. 1 to 6 in this appeal) fastened the liability to pay this claim amount upon the appellant herein who is the owner of the vehicle in question and totally absolved respondent No. 7. Oriental Insurance Company, which admittedly is the Insurer of the vehicle in question. 5. Because the order under challenge in this appeal squarely and absolutely relies upon the above referred Single Bench judgment of the Patna High court, we have no option but to fall back, and comment upon the said judgment and take into consideration its correctness or otherwise. 6. The learned Single Judge of the Patna High Court in the aforesaid judgment dated 22nd August. 2000 has held that the Accident Claims Tribunal has no jurisdiction in an application under Section 140 of the M.V. Act to direct that the interim compensation amount shall be paid by the Insurance Company and that in all such cases, owner of the vehicle alone shall be liable to pay such compensation amount. This blanket proposition of law while interpreting the effect of Section 140 of the M.V. Act has been laid down by the learned Single Judge purportedly and apparently relying upon ajudgment of the Supreme Court in the case of K. Nand Kumar v. Managing Director, Thanthal Periyar Transport Corporation, reported in 1996(2) SCC 736 . 7. This blanket proposition of law while interpreting the effect of Section 140 of the M.V. Act has been laid down by the learned Single Judge purportedly and apparently relying upon ajudgment of the Supreme Court in the case of K. Nand Kumar v. Managing Director, Thanthal Periyar Transport Corporation, reported in 1996(2) SCC 736 . 7. We have very carefully read the aforesaid judgment of the Supreme Court in the case of K. Nand Kumar (supra) and find that no question or issue, directly or indirectly, proximately of remotely, arose for consideration in the aforesaid case relating to any liability of the Insurance Company to pay the compensation amount as awarded under Section 92A of the Motor Vehicles Act, 1339. 8. It is undisputed that Section 140 of the Motor Vehicles Act. 1988 and Section 92A of the Motor Vehicles Act. 1939 are in pari-meteria and any proposition of law, as might be applicable to either of them would be correspondingly held applicable to other one as well. In K. Nand Kumars case, the Supreme Court was interpreting the scope of Sub-Section (4) of Section 92A of the Motor Vehicles Act. 1939 and came to the conclusion that even if the claimant might have been negligent, as per Sub-Section (4) of Section 92A (supra), he was entitled to receive the compensation and therefore, his application under Section 92A was maintainable. No question whatsoever with respect to any liability of the Insurance Company arose in the aforesaid case. It appears that in the aforesaid case, the offending bus belonged to a Statutory Corporation and apparently the buses belonging to such Statutory Corporation might not have been required even to insured. Whether this fact is correct or not, is not wholly relevant for our purposes, because the fact remains that the question of the Insurance Company being liable or not liable to pay did not at all arise for consideration in the aforesaid case. 9. The learned Single Judge, therefore in Layachi Devi was not at all justified in absolving the Insurance Company of its liability to pay the compensation amount arising out of an award passed under Section 140 of the Act relying upon the aforesaid Supreme Court judgment. Such reliance was not at all properly placed. 9. The learned Single Judge, therefore in Layachi Devi was not at all justified in absolving the Insurance Company of its liability to pay the compensation amount arising out of an award passed under Section 140 of the Act relying upon the aforesaid Supreme Court judgment. Such reliance was not at all properly placed. Every Contract of Insurance between the Insured and his Insurer, specially with reference to Section 149 of the M.V. Act, 1988 clearly suggests and lays down, and accordingly binds the Insurer to indemnify the Insured with respect to any liability relating to any Award passed under the Motor Vehicles Act. 1988. Whether an award is passed under Section 166 of the M.V. Act or it is under Section 140 of the Act the liability of Insurer is always there, subject to the same being avoidable only on the specific grounds mentioned in the Act itself. That is a different matter altogether. The Insurer being permitted to avoid liability on one or the other specific ground of the grounds is one thing but saying that under Section 140 of the Act the Insurer is altogether absolved from its liability and that all amounts arising out of the Awards under Section 140 of the Act would be payable by the owners alone, is a proposition of law which is totally alien to the concept of the Motor Vehicles Act and the binding nature of relationship flowing from the Contract of Insurance between the Insured and the Insurer. 10. The judgment of the learned Single Judge of Patna High Court, therefore, in Layachi Devi delivered on 22nd August. 2000 states a proposition of law which is wholly incorrect. This judgment is, accordingly, overruled. 11. Since the order passed by the Tribunal under challenge in this appeal is based on the aforesaid judgment and the same not being sustainable, the said order is also set aside. 12. In the result, this appeal is allowed. The order impugned in the appeal having been set aside, it is directed that the amount awarded by the Tribunal under Section 140 of the M.V. Act shall now be paid to the claimants by the Insurance Company, being respondent No. 7 in this case (Oriental Insurance Company Ltd.). 13. The amount deposited by the appellant in this Court shall be refunded to him by the Registrar General. 14. No Order as to costs. 15. 13. The amount deposited by the appellant in this Court shall be refunded to him by the Registrar General. 14. No Order as to costs. 15. Appeal allowed.