Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1860 (RAJ)

New India Assurance Co. Ltd. v. Kamla

2012-08-30

NISHA GUPTA

body2012
JUDGMENT 1. - Since common question is involved in both these appeal, therefore, both the appeals are being decided by this common order. 2. These appeals have been preferred under Section 173 of the Motor Vehicles Act, 1988 against the interim award dated 23.12.2011 passed by the Judge, Motor Accidents Claim Tribunal, Banswara in M.A.C.T. Case No. 54/2009 and the appellant company has been held responsible to pay interim compensation of Rs. 50,000/-. 3. The only contention of the present appellants is that the contention of the present appellants before the Claim Tribunal was that the vehicle was registered and insured as a private vehicle against "Act Policy only" and no premium was charged by the Insurance Company to cover the risk of any gratuitous passenger travelling in the said jeep, therefore, the Insurance Company is not liable to pay any compensation. The copy of the Insurance Policy was also produced before the Tribunal to establish the contention of the appellant-company, but the learned Tribunal without considering the statutory defences raised on behalf of the appellant-company and without taking into consideration the above facts, passed interim award under Section 140 of the Motor Vehicles Act., Hence the award should be set aside qua the appellant. 4. Per contra, the contention of the respondents is that there is no fault in the interim award passed. The contention of the present appellant is that the appellant is not liable to pay any compensation as the deceased was a gratuitous passenger in the vehicle. 5. As regards the maintainability of the appeal, reliance has been placed on Yallwwa (Smt.) & Ors. v. National Insurance Company Ltd. & Anr., MACD 2007(1) (SC) 532 , wherein it has been held as under: "One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an 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. It may be noted that Chapter X of the Act provides for no forum for enforcement of the right under Section 140. The only forum available is in Chapter XU. It may be noted that Chapter X of the Act provides for no forum for enforcement of the right under Section 140. The only forum available is in Chapter XU. The right under Section 140 can only be enforced under Section 168 as an award. An appeal, therefore, lies under Section 173 against such an award seeking to enforce the right under Section 140." And the above view has been further reiterated in United India Insurance Company Ltd. v. Serjerao & Ors. (MACD 2008 (SC) 33). 6. Looking at the above legal proposition, there is no doubt about the fact that the appeal is maintainable against the interim award under Section 140 of the Motor Vehicles Act. Further more, the contention of the present appellant was that the deceased was gratuitous passenger, therefore, there is no liability against the appellant and reliance has been placed on I.C.I.CI. Lombard General Insurance Company Ltd. v. Kesa & Ors., 2012 R.A.R. 38(Raj.). 7. The contention of the respondent is that Section 140 of the Motor Vehicles Act has been enacted as an emergent provision and at the stage of Section 140 of Motor Vehicles Act, rival contentions cannot be taken care of meticulously. Award under Section 140 of the Motor Vehicles Act has been passed and if at the final disposal of the petition, it is found that no liability could be fastened on the Insurance Company, then the amount of interim award under Section 140 of the Motor Vehicles Act can be adjusted towards the liability of the owner. 8. Looking to the aim of Section 140 of the Motor Vehicles Act, the contention of the respondent seems sound. At the stage of passing interim award under Section 140 of the Motor Vehicles Act, the meticulous consideration of the rival contentions could not be made and if after hearing of the parties and at the final disposal of the petition, it is held that the Insurance Company was not having any liability towards the claim, the amount paid under Section 140 of the Motor Vehicles Act could be adjusted towards the final award and a liberty could be granted to the Insurance Company to recover the amount from the owner or the liable respondents.With the above observations both these appeals deserve to be dismissed and the same are hereby dismissed.Appeals dismissed. *******