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2016 DIGILAW 1876 (HP)

New India Assurance Company Limited v. Kanta Devi

2016-09-02

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. 1. This appeal is directed against the order, dated 4th July, 2006, passed by the Motor Accident Claims Tribunal (I) , Dharamshala (HP), (for short, “the Tribunal”) in C.M.A. No.431/2005, titled as Smt. Kanta Devi & others vs. Sh. Ajay Kumar & others, whereby application under Section 140 of the Motor Vehicles Act, 1988 (for short, “the Act”), was allowed and interim compensation under 'No Fault Liability' to the tune of Rs.50,000/- was granted in favour of the claimants and the against the insurer (for short the “impugned order”). 2. Feeling aggrieved, the insurer has filed the instant appeal challenging the impugned order on the ground that the Tribunal has fallen in an error in directing it to satisfy the interim compensation. 3. It is beaten law of the land that interim award passed under Section 140 of the Act is appealable but cannot be questioned on flimsy grounds. Section 140 of the Act mandates that the interim award can be granted on the basis of prima facie proof to the effect that the accident is outcome of rash and negligent driving of the driver of a motor vehicle, the vehicle is insured and the victim has sustained permanent disability or has succumbed to the injury. 4. The apex Court in a case reported in (1991) ACC 306 (SC) titled Shivaji Dayanu Patil and another vs. Smt. Vatschala Uttam More laid down the guidelines how to grant interim relief/award, in terms of Section 140 of the Act. 5. I, as a Judge of Jammu and Kashmir High Court, while dealing with the case reported in (2011) 3 ACC page 411 titled National Insurance Co. Ltd. Vs. Nasib Chand, laid down the guidelines for grant of interim award. It is apt to reproduce paras 3, 6, 18 & 19 of the said judgment herein. “3. The crux of the matter is whether the defence projected and taken by the appellant-insurer in terms of Section 149 of the Act can be pressed into service at the time of determination of application under Section 140 of the Act for grant of interim award on no fault liability. The answer is negative for the following reasons. xxx xxx xxx 6. The answer is negative for the following reasons. xxx xxx xxx 6. Claims under Section 140 of the Act cannot be defeated on the ground that the owner has committed the breach or the insurer has a defence in terms of Section 149 of the Act, which requires determination after leading evidence. xxx xxx xxx 18. In terms of section 140, 141, 158(6) and 166(4) read with the Rules (supra), the Claims Tribunal is required to satisfy itself while determining the petition under section 140 of the Act in respect of the following points. i. The accident has arisen out of the use of motor vehicle; ii. The said accident resulted in death or permanent disablement; iii. The claim is made against the owner and insurer of the motor vehicle involved in the accident. 19. The Claims Tribunal after examining the FIR and the disability certificate came to the conclusion that claimant-respondent no.1 has prima facie established all the ingredients which are required for determination of the petition under section 140 of the Act on no fault liability. The appellant-insurer has not denied the factum of insurance. Thus it is admitted that the vehicle was insured at the relevant point of time. The Tribunal has strictly followed the procedure contained in sections 140 and 141 of the Act read with the Rules (supra).” 6. The apex Court in a case titled as National Insurance Company Ltd. vs. Sinitha and Ors reported in, 2012 AIR SCW 10, has discussed the mandate of Sections 140 and 163-A of the Act and laid down the principles how to grant interim compensation. 7. I have gone through the impugned award, which is speaking one, needs no interference. 8. Having said so, the appeal is dismissed and the insurer is directed to pay the amount, as granted by the Tribunal, by providing that in case, at the conclusion of the case, it is proved that the vehicle was not insured or the owner had committed willful breach, the owner has to reimburse. 9. The parties are directed to cause appearance before the Tribunal on 22nd September, 2016. 10. The Registry is directed to send down the record along with copy of the judgment forthwith so as to reach before the Tribunal before 22nd September, 2016.