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2008 DIGILAW 838 (MP)

New India Assurance Co. Ltd v. Sharda Gupta

2008-07-09

P.K.JAISWAL

body2008
Judgment P.K.Jaiswal, J. ( 1. ) Appellant by Mr. B.N. Malhotra, Advocate. Claimants by Mr. Deepak Gupta, Advocate. Respondent No. 8 by Mr. S. Gajendragadkar, Advocate. Heard. ( 2. ) This appeal is filed by the insurance company, insurer of Maruti van bearing registration No. MP 08-D 0873 challenging the interim award dated 18.2.2008 passed by the Seventh Additional Motor Accidents Claims Tribunal at Gwalior in Claim Case No. 89 of 2007, whereby the learned Tribunal allowed the application filed by the claimants under section 140 of the Motor Vehicles Act, 1988 (in short the Act) and held that the insurer of Maruti van and bus are jointly and severally liable to pay the amount of interim compensation and held them liable under section 147 of the Motor Vehicles Act, 1988. ( 3. ) The sole contention of the learned counsel for the appellant is that as per the insurance policy dated 16.9.2006 Maruti van was insured Act Liability Only and the risk of the occupant travelling in the said vehicle is not covered and no premium charged for the same. It is also submitted that the accident occurred due to negligent driving by respondent No. 3 against which the criminal case was also registered after due investigation. He lastly submitted that Tribunal has not considered the legal aspect while allowing the application under section 140 of the Motor Vehicles Act and committed a legal error in directing the appellant to pay the amount of Rs. 25,000 to the claimants-respondent Nos. 1 to 4. ( 4. ) The Supreme Court in the case of Yallwwa v. National Insurance Co. Ltd., 2007 ACJ 1934 (SC), has held that once the insurance company raised a dispute in respect of breach of conditions specified in the policy, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that the insurance company shall also be liable to deposit the amount while it has no fault whatsoever, in terms of sub-section (2) of section 147 of the Act. Once objections are raised by the insurance company in this regard to its liability the Tribunal is required to render a decision upon the case. It is further held by the Apex Court that proviso appended to section 166 of the Act makes the owner of the vehicle liable, but not the insurer per se. Once objections are raised by the insurance company in this regard to its liability the Tribunal is required to render a decision upon the case. It is further held by the Apex Court that proviso appended to section 166 of the Act makes the owner of the vehicle liable, but not the insurer per se. Irrespective of the fact whether a claim petition is required to be adjudicated under Chapter X or Chapter XII of the Act, it is permissible to raise a defence in terms of sub-section (2) of section 149 of the Act. ( 5. ) In the case of United India Insurance Co. Ltd. v. Serjerao, 2008 ACJ 254 (SC), the Tribunal passed interim award on the principle of no fault liability against insurance company in each claim rejecting the plea of insurance company that it had no liability in respect of persons travelling in the trolley. An appeal was preferred before the High Court. Learned single Judge of Bombay High Court, Aurangabad Bench, prima facie, was of the view that the appeal was not maintainable. The matter was later on referred to the Full Bench. While the matter was pending consideration before the Full Bench the executing proceedings were filed. Insurance company challenged the said action by filing writ petition, which was dismissed against which a civil appeal was filed before the Apex Court. It was held by the Apex Court that appeal against the interim award is maintainable as per the taw laid down by the Apex Court in the case of Yallwwa, 2007 ACJ 1934 (SC). It was also held that question of liability regarding labourers travelling in trolley is concerned, the matter was considered by the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909 (SC) and it was held that the insurance company has no liability. The Apex Court relying on the aforesaid two decisions set aside the impugned order and remanded the matter to the High Court to consider the matters afresh in the light of the law laid down in the cases of Yallwwa (supra) and Brij Mohan (supra). ( 6. ) Learned counsel for the appellant drew my attention to the decision of the Supreme Court in the case of Yallwwa v. National Insurance Co. Ltd., 2007 ACJ 1934 (SC) and decision of this court in the case of Oriental Insurance Co. ( 6. ) Learned counsel for the appellant drew my attention to the decision of the Supreme Court in the case of Yallwwa v. National Insurance Co. Ltd., 2007 ACJ 1934 (SC) and decision of this court in the case of Oriental Insurance Co. Ltd. v. Kantidevi, 2008 (2) TAC 96 (MP), wherein it has been held that if there is breach of condition of policy the insurance company is not liable to pay the amount of interim compensation. ( 7. ) For the above-mentioned reasons the impugned order is not sustainable and, therefore, the same is set aside. The question of liability of the appellant insurance company and liability of the insurance company, respondent No. 8, insurer of the bus shall be decided on merits in accordance with law. ( 8. ) I have riot expressed any opinion on the merits of the case. The amount deposited by the appellant in pursuance to the interim order passed by this court shall be refunded to the appellant insurance company. ( 9. ) With the aforesaid, the appeal is allowed and disposed of. Appeal allowed.