Against the order v. KIRAN DEVI

FOR APPELLANT ……….. MR. ASHOK PRIYADARSHI FOR RESPONDENTS………… P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant.

2. This Miscellaneous Application is directed against the order dated 15th December, 2004, passed in M.V. Claim No. 52 of 2004/ 2 24 of 2004 by Additional District Judge III-cum-Motor Vehicles Claims Tribunal, Nawadah, under Section 140 of the Motor Vehicles Act, 1988, by which Rs.50,000/- ad interim compensation has been granted for no fault liability under Section 141 of the Motor Vehicles Act, 1988.

3. Learned counsel for the appellant has challenged the judgment and award of the Tribunal on two grounds that a separate order under Section 140 of the Motor Vehicles Act, 1988, cannot be passed in a separate petition under Section 140 of the Motor Vehicles Act, 1988, and further on the ground that though no enquiry has been made regarding the fact of no fault liability or limited liability of the Insurance Company. When the Insurance Company has denied the fact that the accident has not taken place by the said vehicle or the death of the deceased has not occurred due to motor accident by such vehicle. Hence, has specifically denied the accident has taken place from the said vehicle and has contended that the Tribunal without going into the prime facie enquiry to satisfy that the occurrence took place from the said vehicle have allowed the claim which is not sustainable.

4. From the impugned order, itself, it appears that the case of the appellant is that on 14.04.2004 at about 1:15 a.m., the deceased, Shital Thakur, was going to take Rukhsati of his own relative from Patandei on Commander Jeep and when the vehicle which was being driven rashly and negligently by the driver reached near Kahila Sadar Pain, turned down due to the heavy blast, the Jeep raised in air and then 3 fell down, resulting in the death of the deceased, due to the serious injury.

5. On notice the insurance company appeared and filed it’s written statement making out a case that death was not occurred due to the motor accident and has contended that without framing any issue or point for enquiry or without giving any opportunity of being heard or adducing the evidence, the impugned order was passed taking into consideration that the death of the deceased was due to injury caused by explosive substance and even observing that the death was not due to motor accident or a rash and negligent driving, granted compensation without going into the question whether the accident took place due to the accident of the said vehicle merely because on the ground that the vehicle was insured and for claim under Section 140 of the Motor Vehicles Act, 1988, no fault of liability.

6. Even on notice the claimants have not appeared before this Court. However, so far the first point raised is that no petition for ad interim compensation is permissible on a petition under Section 140 of the Motor Vehicles Act, 1988, is not sustainable. However the point raised is well answered after referring Sections 140, 141, 166, 168, 171, 173 and 174 of the Motor Vehicles Act, 1988, in decision reported in 1994 (1) P.L.J.R., 79(Oriental Insurance Company Lts. Vrs. Mohiuddin Kureshi @ Mohd. Moya). Paragraph 11 of the said judgment is required to be quoted below:- 4 “From the conjoint reading of the aforementioned provisions there cannot be any doubt that an application under Section 140 of the said Act, can be separately.”

7. And this observation has been made by well considering Sections 141, 166, 168, 171 and 172 of the Motor Vehicles Act, 1988. I have no hesitation in deciding that a petition under Section 140 of the Motor Vehicles Act, 1988, is maintainable separately.

8. However, the second point for consideration raised is worth considerable. However, the learned counsel for the appellant has raised the issue that though appellant appeared and raised objection that the occurrence is not taken place due to the accident of the motor vehicle and without going into the enquiry and without considering any material granted the interim compensation even without framing any issue whether the occurrence took place due to the accident of the said motor vehicle or whether the said motor vehicle was insured, Tribunal passed the order for payment of interim compensation on said petition that the occurrence took place by the said vehicle and merely taken into consideration that parties are not required to prove the rash and negligent driving of the vehicle, however, left the question open whether the accident took place due to the accident of the said motor vehicle involved in accident without giving an opportunity to the insurer/owner to establish or to give an opportunity, to place material or evidence, in this regard, and hence the impugned order is set aside and 5 the case is remanded back to the Tribunal for consideration afresh after giving opportunity to the parties to adduce evidence on the relevant point under Section 141 of the Motor Vehicles Act, 1988.

9. Rs.25,000/- deposited as statutory amount, however, be sent down to the lower Court so that after the enquiry if the Tribunal found on enquiry the claimants are entitled for interim compensation then the said amount shall be used to satisfy the award.

10. With these observations and directions this Miscellaneous Appeal is allowed. (Gopal Prasad, J.) The Patna High Court, The 23rd day of September, 2010 N.A.F.R./Cp:3/Safik