Oriental Insurance Co. Ltd. vs Kamlesh Devi and Others

Hasnain Massodi, J.—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 u/s 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"" u/s 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 u/s 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.

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"" u/s 140 of the Act.

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 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 u/s 140 of the Act,

was subject to the appeal in terms of section 173 of the Act.

I have gone through the the record and heard the learned counsel for the parties.

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 u/s 140 of the Act. Reliance is

placed on the law laid down in United India Insurance Co. Limited Vs. Bhupinder Singh and Others, , General Manager and another v. Tirath

Singh, 2006 (1) JKJ 189 (SC), Oriental Insurane Co. Ltd. v. Jhuna Saha and others, 2007 (1) ST 609, Smt. Yaljlowwa and Others v. National

Insurance Co. Ltd. and another, 2007 (5) Supreme 144 and Oriental Insurance Co. Ltd. Vs. Som Raj and Others, . 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 u/s 140 of the Act can be maintained only if the person who has died or suffered permanent disablement, had not been negligent. The claim

u/s 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 Vs. Smt. Vatschala Uttam

More, , Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, , K. Nandakumar Vs. Managing

Director, Thanthal Periyar Transport Corpn., and N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, .

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"" u/s 140 of the Act also maintain a claim petition on ""fault basis"" and wherever such claim, in addition to claim

u/s 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 u/s 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 u/s 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.

The Tribunal, as pointed out in the afore reported case, is not to treat the claim u/s 140 of the Act as an interim relief and postpone the enquiry

to a later stage when the claim u/s 166 of the Act is dealt with after going into the rival stands taken by the claimant(s) and the insurance company.

Claim u/s 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. 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 u/s

140 of the Act It needs to be emphasized that that the Tribunal while allowing claim u/s 140 of the Act, over-ruling the defence set up by the

insurance company u/s 149(2) of the Act, in effect holds the defence to be without merit and if at conclusion of proceedings in claim u/s 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 u/s 140 of the Act.

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 u/s 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"" u/s 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 u/s 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.

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.