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2011 DIGILAW 485 (JK)

Oriental Insurance Co. Ltd. v. Kamlesh Devi

2011-09-09

Hasnain Massodi

body2011
1. Shri Romesh Singh S/O Shri Bichtter Singh R/O Village Legar, Tehsil Akhnoor District Jammu died on 9-6-2007 in a vehicular accident at Doomi. Smt. Kamlesh Devi Widow of the deceased and his two children-respondents 1 to 3 herein filed claim petition No. 735/2008 under section 166 of the Motor Vehicle Act (hereinafter called the Act) before the Motor Accident Claims Tribunal, Jammu. The claimants also filed "No fault Claim Petiton" under section 140 of the Act before the Tribunal. The claim petitions were opposed by the insurance company-appellant herein on the ground that the deceased was himself a tort feaser in as much as the deceased due to rash and negligent driving of the scooter No. JK02X 1089 on which he was travelling from Jammu to Akhnoor, hit back side of a parked/stationed vehicle No. JK02W 1835 resulting in his death on spot. The appellant-insurance company proposed to place reliane on the final report under section 169 Cr. PC in case FIR No. 65/2007 dated 9-6-2007 whereby the investigation in case FIR No. 65/2007 pertaining to the occurrence in question was closed on the ground that the deceased responsible for the accident and accused in the matter, had died due to the accident for which he was responsible. 2. The Tribunal placed reliance on Para-9 of the claim petition wherein the responsibility for the vehicular accident was placed on driver of Truck No. JK02W 1835. Learned Tribunal while making reference to FIR No. 65/2007 dated 9-6-2007, did not take notice of the fact that the investigation had been closed vide final report dated 9-8-2007. The Tribunal thereafter vide order dated 18-11-2008 proceeded to award Rs. 50,000/- on the principle of "No Fault Liability" under section 140 of the Act. 3. The award/order dated 18-11-2008 is assailed in the present Civil First Miscellaneous Appeal on the ground that the the award/order is against the law and liable to be set aside. The learned Tribunal is said to have not appreciated the law and the facts in right perspective and allowed the LRs of the tort feaser to maintain the claim petition against the insurer. The LRs of the deceased, it is insisted, cannot get benefit out of the act of the deceased, that resulted in his death. The learned Tribunal is said to have not appreciated the law and the facts in right perspective and allowed the LRs of the tort feaser to maintain the claim petition against the insurer. The LRs of the deceased, it is insisted, cannot get benefit out of the act of the deceased, that resulted in his death. The LRs of the deceased, according to the appellant, cannot accuse the deceased of rash and negligent driving and still maintain the claim petition under sections 166 and 140 of the Act. It is pointed out that the award/order made under section 140 of the Act, was subject to the appeal in terms of section 173 of the Act. 4. I have gone through the the record and heard the learned counsel for the parties. 5. Learned counsel for the appellant, elaborating on the grounds urged in the appeal, insists that the Tribunal has erred while passing the award/order impugned in the appeal and has not dealt with the objections raised by the appellant in opposition to the claim under section 140 of the Act. Reliance is placed on the law laid down in United India Insurane Co. Ltd. v. Bhupinder Singh and Others, AIR 1996 J&K 21 , General Manager and another v. Tirath Singh, 2006(1) JKJ 189 (SC), Oriental Insurane Co. Ltd. v. Jhuna Saha and others, 2007(1) Supreme Today 609, Smt. Yaljlowwa and Others v. National Insurance Co. Ltd. and another, 2007(5) Supreme 144 and Oriental Insurance Co. Ltd. v. Som Raj and others, 2009 (2) JKJ 26 . Learned counsel for the respondents on the other hand, insists that section 140 of the Act is clear departure from the settled legal principles that the claimant in order to succeed in the claim petition, has to establish negligence on part of the owner of the motor vehicle, and that there is no basis for the argument that claim under section 140 of the Act can be maintained only if the person who has died or suffered permanent disablement, had not been negligent. The claim under section 140 of the Act, it is insisted, is not to fail merely because there is some doubt regarding the involvement of the driver of the offending vehicle in the accident. The claim under section 140 of the Act, it is insisted, is not to fail merely because there is some doubt regarding the involvement of the driver of the offending vehicle in the accident. Learned counsel for the respondents places reliance on the laid down in Shivaji Dayanu Patil and another v. Smt. Vatschala Uttam More, AIR 1991 SC 1769 , Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Parbhatbhai and another, AIR 1987 SC 1690 , K. Nandkumar v. Managing Director, Thanthal Periyar Transport Corporation, AIR 1996 SC 1217 and N.K.V. Bros(P) Ltd. v. M. Karumai Ammal, AIR 1980 SC 1354 . 6. Section 140 of the Act enables the claimants to maintain claim petition for award of fixed sum of amount mentioned in section 140(2) of the Act without pleading and proving that the death in respect of which the claim has been made, was due to any wrongful act, neglect or default of the owner or owners of the vehicle of vehicle concerned or of any other person. It is pertinent to point out that the claimants may in addition to claim on the basis of " No Fault Liability" under section 140 of the Act also maintain a claim petition on "fault basis" and wherever such claim, in addition to claim under section 140 of the Act is filed, the claim on the basis of "No Fault Liability" is to be disposed of expeditiously and in the first place. The object is to give some kind of immediate relief and succor to the dependents of the deceased who are suddenly deprived of their source of income. It, however, does not imply that the claim under section 140 of the Act should be allowed as a matter of course without any enquiry whatsoever into the defence that may be set up by the insurance company within the parameters of section 149(2) of the Act. The Tribunal while dealing with the claim under section 140 of the Act, is not free from its duty to enquire into the matter and instead place exclusive reliance on the averments pleaded in the claim petition unmindful of the stand taken by the insurance company while contesting the claim. The Tribunal while dealing with the claim under section 140 of the Act, is not free from its duty to enquire into the matter and instead place exclusive reliance on the averments pleaded in the claim petition unmindful of the stand taken by the insurance company while contesting the claim. It would be advantageous to extract following passage from Som Raj's case (supra): "Therefore, while disposing of the claim based on no fault basis, as the owner of the vehicle is required to be heard, so is the insuer. It may be possible that the owner may contend that he is not the owner of the vehicle involved in the accident and, if such a plea is taken, unless there is a finding that the vehicle in question was owned by him, no compensation can be awarded against him. Similarly, if the insurer takes a plea, which it is entitled to take as and by way of defence and as has been provided in sub section (2) of section 149 of the Act, the veracity and effect of such plea is required to be adjudicated, otherwise the right of the insurer to defend a claim on it would be defeated. In the circumstances, when a plea is taken by the insurer as is available to it under sub section (2) of section 149 of the Act, there must be an adjudication that such a plea is not sustainable and, accordingly, the insurer is liable to pay the amount due and payable by the owner to the extent of the insurance policy and all costs, interest etc payable thereon." 7. The Tribunal, as pointed out in the afore reported case, is not to treat the claim under section 140 of the Act as an interim relief and postpone the enquiry to a later stage when the claim under section 166 of the Act is dealt with after going into the rival stands taken by the claimant(s) and the insurance company. Claim under section 140 of the Act is for all purposes and intents an independent and separate claim. As laid down in Som Raj's case. "There must be a pronouncement that the defence put forward by the insurer in terms of section 149(2) of the Act is not available or that the case set up in opposition to the claim, is devoid of any substance. As laid down in Som Raj's case. "There must be a pronouncement that the defence put forward by the insurer in terms of section 149(2) of the Act is not available or that the case set up in opposition to the claim, is devoid of any substance. The Tribunal as held in the aforementioned case, has to make effort to look into "all facts" and even take the evidence, if necessary, though it may not be necessary in all the cases to go for an elaborate enquiry while dealing with the claim under section 140 of the Act It needs to be emphasized that that the Tribunal while allowing claim under section 140 of the Act, over-ruling the defence set up by the insurance company under section 149(2) of the Act, in effect holds the defence to be without merit and if at conclusion of proceedings in claim under section 166 of the Act, the Tribunal arrives at a different conclusion, the insurance company would be left without any remedy to undo the conclusion drawn by the tribunal while disposing of claim under section 140 of the Act. 8. In the present case, the tribunal has not at all gone into the defence set up by the insurance company in opposition to the claim under section 140 of the Act. The tribunal while making a brief reference to para-9 of the claim petition and taking it as gospel truth, has rushed to award compensation on the principle of "No fault liability" in favour of the claimants. The tribunal has not even looked into the conclusion of the investigation as reflected in "final report" under section 169 Cr.PC or given any reason that persuaded the tribunal to disagree with the conclusion so drawn or to give different colour to the occurrence that resulted into the death of Shri Romesh Singh S/O Bachiter Singh. The tribunal was not to allow the claim under section 140 of the Act as a matter of course without looking into all aspects of the case and dealing with the grounds urged by the insurance company in opposition to the said claim. 9. For the reasons discussed above, the CIMA assailing the order/award dated 18.11.2008 is accepted and the order/award is set aside. The matter is remanded to the tribunal for fresh disposal in accordance with law.