AI Structured Summary
Not yet generated for this judgment
Judgment
The present appellant, who was original opponent No.3 before the MACT (Main), Bhavanagar in MACP No.7 of 2015 filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'The Act'), has challenged the judgment and award dated 20.07.2016 passed in application under Section 140 of the Act directing the appellant Insurance Company to pay Rs.50,000/- with 9% interest per annum till realization.
The short facts of the present case are as under:
2.1 That, on 26.07.2014, at about 19:10 hours, the deceased was driving a motor vehicle-Swift Dzire Car, bearing registration No.GJ-5-JB-0915, on Mumbai-Ahmedabad National Highway No.8. In the sim of Village-Ves, nearby Arak Sisodra Patiya, opponent No.1 came from the opposite direction driving the vehicle in rash and in negligent manner and dashed with the vehicle driven by the deceased. As per the averments made in the claim petition filed by the applicants, the accident was occurred on account of rash and negligent driving of motor vehicle-Tata Tempo 407, bearing registration No. GJ-15-X-6472, drove by the opponent No.1. That, complaint was registered against the opponent No.1 before the Navsari Rural Police Station vide C.R. No.135 of 2014. That, the original claimants have requested to pass an award of Rs.25 lakhs in their favour.
2.2 During the pendency of the petition, they preferred an application under Section140 of the Act requesting to grant interim compensation of Rs.50,000/-. The learned Judge, after hearing the respective parties and considering the documents produced on record, was pleased to allow the application vide order dated 20.07.2016 directing the opponents to pay the amount of Rs.50,000/- with interest @ 9% from the date of application till its realization. The present appellant has challenged the said order before this Court by filing this appeal under Section 173 of the Act.
Heard learned advocate Mr. Dakshesh Mehta for the appellant and learned advocate, Mr. Tatvadeep Jani for the respondent Nos.1.1 -1.4- original claimants.
Learned advocate for the appellant has submitted that the impugned order passed below Exh.4 by the tribunal is contrary to law and documents produced on record. That, the claimants have filed the petition against their own insurance company. That, the deceased himself was driving the vehicle at the time of accident. That, the deceased was not the paid driver of the owner of the car and as per the terms and conditions of the policy, the driver steps into the shoes of the owner of the vehicle, and therefore, he cannot be considered as third party under the provisions of the Act. It is further submitted that the legal representative of the person driving the vehicle, after borrowing it from the owner, if meets with an accident without involving any other vehicle, would not be entitled to claim compensation under Section 163-A of the Act. In support of his arguments, reliance is placed upon 2009 ACJ 2020 in the case of Ningamma & Others V/s. United India Insurance Company and ultimately, it was requested by learned advocate for the appellant to quash and set aside the impugned order dated 20.07.2016 passed in MACP No.7 of 2015 below Exh.4.
From the other side, learned advocate for the respondents/original claimants has submitted in his arguments that the tribunal has rightly considered the facts and the legal position while passing the order. That detailed inquiry as envisaged while proceeding under Section 140 of the Act, would not be required. That, only three aspects namely (1) the accident has arisen out of use of motor vehicle, (2) the said accident resulted in permanent disablement of a person filing the claim or in case of death his legal representatives and (3) the claim is made against the owner and the insurer of the motor vehicle involved in the accident are required to be considered by the Tribunal. That, no such inquiry as envisaged or permissible at this stage. That, the tribunal has committed no error holding liability of the present appellant jointly and/or severally to pay the compensation in favour of the claimants and hence, it was requested by the learned counsel for the respondents to dismiss the appeal.
Having considered the facts of the case and submissions made by the learned advocate for the respective parties. It appears from the findings arrived at by the tribunal that this accident was occurred on 26.07.2014 on National Highway No.8 from Mumbai to Ahmedabad in the sim of Village-Ves nearby Arak Sisodra Patiya. The police complaint was also registered vide C.R. No.135 of 2014 before the Navsari Rural Police Station against the opponent No.1 - driver of the vehicle-Swift Dzire Car bearing registration No. GJ-5 -JB-0915. The deceased was driver of the motor vehicle at the time of accident and his vehicle was collided with the vehicle-Tata Tempo 407, bearing registration No.GJ-15-X-6472. Indisputably, there were two motor vehicles involved in the accident, i.e Tempo 407, bearing registration No. GJ-15-X-6472 and Swift Dzire Car, bearing registration No. GJ-5 -JB-0915. The insurance company had challenged one order of refusal by the tribunal to join owner cum possessor as well as the insurance company of the Tata tempo. That, one Special Civil Application No.1795 of 2016 was preferred by the Insurance company before this Court, which was allowed on 21.02.2019 permitting the insurance company to join owner cum possessor as well as the insurance company of the Tata tempo, bearing registration No.GJ-15-X-6472. In the instant case, the deceased was the driver of the motor vehicle and the said vehicle met with an accident with the vehicle coming from the opposite direction. The claimants in the petition are the legal representatives of the deceased driver. The question of granting interim compensation to the claimants in such a case was denied by the Hon'ble Supreme Court in the case of Ningamma & Others V/s. United India Insurance Company reported in 2009 ACJ 2020 holding that legal representative of the person driving the vehicle, after borrowing it from the owner, if meets with an accident without involving any other vehicle would not be entitled to claim compensation under Section 166 of the Act. In the cited case, there was only one vehicle and no other vehicle was involved in the petition claiming compensation under Section 163-A of the Act. Here, in the instance case, the original petition was filed by the claimants under Section 166 of the Act, wherein interim application for compensation under Section 140 of the Act was filed by the claimants requesting to pass an award for interim compensation of Rs.50,000/-. From the averments made in the application as well as the petition, two motor vehicles i.e Tempo 407, bearing registration No. GJ-15-X-6472 and Swift Dzire Car, bearing registration No. GJ-5 -JB-0915, are involved in the accident. That, the deceased was one of the driver of one of the vehicles and he received injuries and succumbed to death. The police complaint was also lodged against the opponent No.1- driver of the another motor vehicle before the Navsari Rural Police Station. While, deciding the application under Section 140 of the Act, claimants have proved that the accident arisen out of use of motor vehicle, which was resulted in permanent disablement of the person filing the claim or in case of death, his legal representatives as well as the claim was made against the owner and the insurer of the motor vehicle involved in the accident. That, no such inquiry as envisaged or permissible under the provisions of Section 140 of the Act. The defense of the present appellant would certainly be available under Section 149(2) of the Act and would be decided by the tribunal at the time of final hearing of the petition filed under Section 166 of the Act. The defense raised by the present appellant in an application under Section 140 of the Act preferred by the claimants, would not be necessary for the tribunal to decide the same. That, three aspects, as stated above, were clearly established by the claimants and tribunal has rightly considered while arriving at the conclusion by allowing the application.
Hence, this Court is of the view that judgment relied upon by the present appellant would not be helpful to decide this appeal. Learned advocate for the appellant has submitted that out of total interim amount of Rs.50,000/-, Rs.25,000/-was already deposited by the present appellant while filing the appeal before this Court.
Accordingly, this appeal is ordered to be dismissed. The appellant shall deposit remaining amount of Rs.25,000/- along with interest as ordered by the tribunal within a period of four weeks from the date of receipt of the order. Accordingly, this appeal is dismissed. Interim relief granted by this court dated 08.11.2016 shall stand vacated.