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2003 DIGILAW 89 (CAL)

UNITED INDIA INSURANCE CO. LTD. v. MINA MITRA

2003-02-27

ARUNABHA BARUA, SAMARESH BANERJEE

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SAMARESH BANERJEA, J. ( 1 ) THE appellant made an application for stay of the operation of the judgment and award dated 11. 6. 2002 passed by the Motor Accidents claims Tribunal, Alipore, in M. A. C. Case no. 88 of 2000. ( 2 ) IN the course of hearing of the said application, we also heard the appeal itself after dispensation of all formalities. ( 3 ) BY the impugned judgment and the award against which the present appeal has been filed, the Tribunal allowed the application of the claimant under section 140 of the Motor Vehicles Act, 1988 and awarded the statutory compensation of rs. 50,000 on 'no fault' basis. ( 4 ) DESPITE the fact, time and again, the supreme Court as well as different High courts including our High Court, after following the decisions of the Supreme court, have deprecated the practice of the insurance company to prefer appeal against the award passed under section 140 of the motor Vehicles Act, 1988, the present appeal has been filed. ( 5 ) THE only contention of the appellant in the said application as also in the memorandum of appeal is that the appellant company never issued any insurance policy covering the risk in respect of the offending vehicle at the material point of time when the accident took place. ( 6 ) IT is contended that although the claimants-respondents before the Tribunal fixed a xerox copy of the alleged policy in which the policy issuing office was mentioned as "united India Insurance Co. Ltd. , Branch IV, Division 16, Chittaranjan avenue, Calcutta" the insurance company in its written statement before the Tribunal denied issuing such certificate and alleged that such xerox copy was false and fabricated. ( 7 ) THE learned counsel appearing on behalf of the appellant has contended that although specifically such point was raised before the Tribunal by filing additional written statement, the Tribunal failed to consider such point. It has been further contended that such point should have been decided at that stage itself, inasmuch as, if the said policy was not issued by the appellant insurance company, it has no liability to pay. ( 8 ) AFTER considering respective submissions of the parties and the entire materials on record we are unable to agree with the learned counsel appearing for appellant. ( 8 ) AFTER considering respective submissions of the parties and the entire materials on record we are unable to agree with the learned counsel appearing for appellant. ( 9 ) IT appears to us from the impugned judgment and award that such question was raised by the insurance company at the hearing of the application under section 140 of the said Act. Even an officer of the insurance company was examined who deposed, inter alia, that the appellant has no office at Branch No. IV, Division 16, chittaranjan Avenue, Calcutta, but during cross-examination he admitted that the copy of the policy which was filed before the Tribunal is in the format of the company and was issued by the company. ( 10 ) CONSIDERING such fact and also the fact that the insurance company took no steps or referred the matter to the police and also in view of the fact that the proceedings under section 140 of the Motor vehicles Act is of a summary nature, the learned Judge did not accept such contention and allowed the application under section 140 of the said Act. ( 11 ) IN our view that was the correct procedure which was followed by the tribunal. It is now well settled that section 140 of the said Act is a welfare legislation enacted by Parliament in its wisdom for ensuring the helpless successors of a victim to get some immediate relief. ( 12 ) IT is because of the aforesaid reasons any proceeding under section 140 of the said Act, procedure is of a summary nature and the same does not call for detailed investigation of the nature which is sought to be introduced by the insurance company. If the insurance company is of the view that such policy is a fake one and it has never issued the same, obviously it has to satisfy the Tribunal by adducing proper evidence. But stage for adducing such evidence is not in a proceeding under section 140 of the said Act but under section 166 of the said Act. If such a proceeding is adopted by the Tribunal at the instance of a party, the very purpose of section 140 will be negated. But stage for adducing such evidence is not in a proceeding under section 140 of the said Act but under section 166 of the said Act. If such a proceeding is adopted by the Tribunal at the instance of a party, the very purpose of section 140 will be negated. ( 13 ) THE learned counsel appearing on behalf of the claimants-respondents has relied in this connection on a Division bench of our High Court in the case of V. Ravi v. New India Assurance Co. Ltd. , 1998 ACJ 598 (Calcutta), where it was held, inter alia, that if a question of fraud or misrepresentation arises by and between the insurer and the insured, the third party claimant is not concerned therewith. It also does not appear that anywhere, it has been alleged that it is claimant who is involved in such alleged fraud. The report of the investigator of the insurance company filed before the court will also indicate that the address of the owner was not available. ( 14 ) WE are unable to agree with the learned advocate appearing on behalf of the appellant that the insurance company will have no liability to pay compensation under section 140 of the said Act. ( 15 ) WE are of the view that if question of such fraud is raised, it is for the insurance company to prove the same before the Tribunal but in a proceeding under section 166 of the said Act and in the event of success the insurance company will be entitled to recover the amount awarded under section 140 from the insured. ( 16 ) FOR the reasons stated, we do not find any merit in the appeal and the same is hereby dismissed with costs. ( 17 ) THE application for stay is also rejected accordingly. ( 18 ) THE insurance company is now directed to deposit balance of the awarded amount together with interest on the entire awarded amount at the rate of interest as directed by the Tribunal from the date of application together with the cost assessed by us before this court positively within four weeks from date and the Registrar general of this court is directed to disburse the aforesaid amount to the claimants in equal shares by account payee cheques on proper identification. ( 19 ) IN the meantime, the claimants, however, will also be entitled to withdraw the sum of Rs. 25,000 which has been deposited before this court by the insurance company. The Registrar General of this court is also directed to pay such amount to the claimants in equal shares by account payee cheques on proper identification. ( 20 ) URGENT certified xerox copy of this order, if applied for, be granted as expeditiously as possible. Arunabha Barua, J. I agree. Appeal dismissed.