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2013 DIGILAW 335 (JK)

Shabir Ahmed Lone v. Saleema Begum

2013-05-24

JANAK RAJ KOTWAL

body2013
1. Appellant is aggrieved of having been foisted with liability to pay interim compensation under section 140 of the Motor Vehicle Act (for short the Act) to the claimants by order dated 14.3.2012 passed by ld. Motor Accident Claims Tribunal, Kupwara. Hence he has filed this Civil 1st Misc. Appeal. 2. Heard. I have perused the record. 3. Briefly, claimants (respondents 1 to 4) have filed a claim for compensation under section 166 of the Act arising out of death of Anayat-ullah Mir. They had also filed a claim for `no fault' liability compensation under section 140 of the Act. It has been alleged by them that on 27.11.2010 the deceased suffered injuries and died in a motor accident involving a tractor bearing registration No. JK09-4367. In the claim application appellant has been arrayed as owner of the offending vehicle and respondent no. 6 as driver. Respondent no. 5 has been arrayed as insurer. 4. It is not disputed that the offending vehicle as at the time of accident was insured with the respondent no. 5 for 3rd party risk and the appellant, in his capacity as owner, was the insured person. Contention of the appellant, however, was that prior to the alleged occurrence the vehicle was sold by him to respondent no. 7. Impugned order would show that the ld. tribunal absolved the insurer from the liability to pay the interim compensation taking the view that the stand taken by the claimants is contradictory to the contents in the FIR inasmuch as, claimants' case is that at time of accident deceased was hit by the tractor while he was walking on the road whereas in the FIR it has come that the deceased alongwith two other persons was traveling by the tractor. In this context ld. Tribunal has taken note that as per the insurance policy none other than driver has been insured and observed that the contradictory stands are required to be proved by leading evidence. Ld. Tribunal has, therefore, foisted the liability on the owner/insured person. Besides, the ld. Tribunal rejected the appellant's plea that earlier than the accident he had sold the tractor to respondent no. 7 herein by agreement deeds dated 17.11.2009 & 1.10.2011 holding that the transfer was not in conformity with the Section 50 of the Act. 5. Ld. Counsel for the appellant vehemently argued that Id. Besides, the ld. Tribunal rejected the appellant's plea that earlier than the accident he had sold the tractor to respondent no. 7 herein by agreement deeds dated 17.11.2009 & 1.10.2011 holding that the transfer was not in conformity with the Section 50 of the Act. 5. Ld. Counsel for the appellant vehemently argued that Id. Tribunal has fallen into error by ignoring the factum of transfer of offending vehicle from the appellant to respondent no. 7 prior to the alleged accident and further by not foisting liability upon insurance company as the vehicle was insured for third party risk. Ld. counsel for respondents 1 to 4 ( claimants) Mr. RA Gadda, firstly has raised a preliminary objection to the maintainability of this appeal contending that the statutory deposit of Rs. 25,000/- as required under first proviso to Section 173 of the Act has not been made by the appellant. Per contra, ld. counsel for the appellant would say that after filing this appeal he under the order of this court has deposited the entire award amount in this court so requirement of the proviso stands automatically fulfilled. In support he has relied upon AIR 1987 Allahabad 15. Mr. Gadda would further say that the ld. Tribunal has fallen into error by not foisting the liability upon the insurer as the vehicle was duly insured for 3rd party risk as at the time of accident and question of negligence under section 140 of the Act is immaterial Mr. Tariq Ahmad, ld. Counsel for the insurance Company, while not refusing that the offending vehicle was insured for third party risk, would say that the deceased, as he was traveling by the tractor, was not covered under the insurance policy. 6. The legal objection raised by the ld. counsel for respondents 1 to 4 is liable to be rejected as law in this regard by now is well settled. First proviso to section 173 of the Act reads: "173. Appeals....... Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the matter directed by the Court". 7. Appeals....... Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the matter directed by the Court". 7. It is now well settled that the word `entertain' in the proviso does not apply to the filing or presentation of the appeal and the proviso operates as a bar against the hearing/adjudication of the appeal. The Authority, Director General, PACUP Lucknow v. Surya Kumari & Ors. AIR 1987 All. 15, relied upon by ld. counsel for the petitioner is apt on the point. 8. First proviso to S. 173 of the Act creates a bar on adjudication, that is, hearing of the appeal but not on filing/presenting the appeal. Appellant in this case indeed had not made statutory deposit prior to the filing of the appeal but, nonetheless, after filing of the appeal he has deposited entire award amount in this Court so requirement of the proviso stands fulfilled. 9. On a plain reading of the claim application, copy of the FIR No. 65/10 produced by claimants in the Tribunal and copy of charge sheet against the driver produced by the insurer during hearing of this appeal, it would clearly emerge that ld. Tribunal has misdirected itself while emphasizing, what it called as, contradiction in the claimant's case and the FIR. View taken by the ld. Tribunal that the deceased was traveling by the offending vehicle is not well founded and seems misguided. It is neither clear nor evident from the statement contained in the FIR, registered immediately after occurrence at Police Station, Lalpora that deceased at the time of the accident was traveling by the offending vehicle. FIR in its relevant portion reads simply that two persons traveling by the tractor had suffered grievous injuries. It, however, does not show that the deceased was one of those two persons. Same is the case with the charge sheet prepared by the police after investigation. This too does not show that the deceased was traveling by the tractor. FIR is first and prompt version of an occurrence and is not a substantive piece of evidence of the occurrence, or attending facts. Same is the case with the charge sheet prepared by the police after investigation. This too does not show that the deceased was traveling by the tractor. FIR is first and prompt version of an occurrence and is not a substantive piece of evidence of the occurrence, or attending facts. In this case the FIR had been registered on the basis of source information received at the police station. It remains to be looked into and decided in the enquiry in the main claim petition under Sec. 166 as to whether deceased was traveling by the tractor or had otherwise become victim of the accident. The plea taken by the insurance company in this regard too is not in consonance with the statement contained in the FIR and that in the charge sheet. What the Company has alleged is that the deceased was traveling by the tractor and fallen down from the tractor. It is not so stated in the FIR and reference to FIR in this regard is misconceived and premature. 10. Ld. Tribunal has also misdirected itself by taking up the question of transfer of the vehicle and holding the appellant liable for the reason that transfer was not made in accordance with the Section 50 of the Act. Law on the question of transfer of a Motor Vehicle during currency of 3rd party risk insurance is also well settled. A three -Judge Constitutional Bench of the Hon'ble Supreme Court in Rikhi Ram & Anor. v. Smt. Sukhrania & Ors., Co. cases Vol. 114 SC 130, while interpreting Section 94 & 95 of the old Act has led that "whenever a vehicle which is covered by the Insurance Policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act." 11. To summarize briefly, it is not disputed that offending vehicle as at the time of accident was insured for third party risk with the respondent no. 5 so the insurer was liable to indemnify a third party claim, transfer of vehicle during currency of the policy notwithstanding. To summarize briefly, it is not disputed that offending vehicle as at the time of accident was insured for third party risk with the respondent no. 5 so the insurer was liable to indemnify a third party claim, transfer of vehicle during currency of the policy notwithstanding. Whether deceased as at the time of accident was traveling by the vehicle and therefore, would not fall within the definition of a third party is a point of fact which can be determined only on the basis of evidence to be lead by the parties during enquiry before the ld. Tribunal. For the purpose of `no fault' liability compensation under section 140 of the Act, which is a statutory measure for immediate redressal of victims/claimants and is paid on the principle of no fault liability, deceased is to be taken as a 3rd party being covered under the policy of insurance. Insurer cannot be exonerated simply on the basis of its plea that the deceased was traveling by the offending vehicle. 12. For the aforementioned, appeal has merit. The appeal is, therefore, accepted. Impugned order, in so far as it foists liability to pay interim compensation on the appellant, is set aside and liability to pay the compensation is shifted to the insurer respondent no. 5. Money deposited by the appellant in this court be refunded to him. 13. Record of the ld. Tribunal be remitted back alongwith copy of this order.