Bajaj Allianz General Insurance Co. Ltd. v. NONE

O R D E R 23.05.2022

1. Order dated 18th July 2019, passed by Motor Accident Claims Tribunal, Kupwara (for brevity “Tribunal”), directing payment of interim compensation/award is under challenge in this Appeal.

2. I have heard learned counsel for parties and considered the matter. 3. It is vehemently stated in the Appeal that Tribunal has not dealt with application under Section 140 of Motor Vehicles Act in proper perspective as appellant Insurance Company had categorically denied offending vehicle being insured with it and that an application for deleting Insurance Company from the array of respondents in the claim petition on the ground that insurance policy on record of claim petition was fake. It is also averred that the Tribunal has not conducted any enquiry before passing impugned award into the fact that vehicle was not insured. 4. Given submissions made in the Appeal, it may be mentioned here that it is a beaten law that at the time of granting compensation on the principle of No-Fault Liability, the defence(s) available are not to be taken into consideration. It would be appropriate to reproduce Section 140 of the Motor Vehicles Act, 1988 infra: “140. Liability to pay compensation in certain cases on the principle of no fault. — Mac App no.26/2020 (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty thousand rupees] and the amount of compensation payable under that sub- section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement 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 or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 3[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.”

5. Section 140 of the Act, thus, provides that while considering application for grant of interim compensation, the Tribunal has to take into consideration contents contained in the claim petition, FIR, postmortem report, death/disability certificate and, thereafter, has to make an interim award. At this stage, the Tribunal has not to considered defence(s) available to the insurer in terms of other provisions contained in the Act. My view is fortified by the judgement rendered in the case of National Insurance Co. Ltd. v. Nasib Chand, 2011 (II) SLJ 623; relevant portion thereof is reproduced below: “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 or grant of interim award on no fault liability. The answer is in negative for the following reasons. 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. 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; Mac App no.26/2020 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. 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 Supreme Court in National Insurance Company v. Sinitha, AIR 2012 SC 797, has made the same views and observations as have been quoted above. Even a Bench of this Court in Raina and others v. Kh. Habib-ullah Najar and others, 2005 (1) JKJ HC 645, has held that while granting interim relief, the Tribunal has not to look into the defence available to the Insurance Company but on the basis of prima facie evidence available on the record and no roving enquiry is required to be conducted while granting such relief.

7. When the instant case is analyzed in the backdrop of ratio emerging from above discussion, impugned Interim Award need not be interfered with and as a consequence whereof, Appeal is liable to be dismissed.

8. In the given circumstances, the Appeal is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

9. Nevertheless, respondent no.1/claimant shall file an Undertaking before the Tribunal that in the event they fail, they will reimburse the interim compensation.

10. Copy of this order be sent down along with the record. Srinagar 23.05.2022 Ajaz Ahmad, PS Whether the order is reportable: Yes/No. (Vinod Chatterji Koul) Judge Mac App no.26/2020