1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1525 OF 2009 M/s New India Assurance Co. Ltd., ..Appellant Versus Poonam w/o Yogesh Patil and others ..Respondents FIRST APPEAL NO. 1526 OF 2009 M/s New India Assurance Co. Ltd., ..Appellant. v e r s u s Eshan s/o Yogesh Patil and others ..Respondents. FIRST APPEAL NO. 1527 OF 2009 M/s New India Assurance Co. Ltd., ..Appellant. v e r s u s Vidit s/o Yogesh Patil and others ..Respondents. Shri V.N. Upadhye, advocate for the appellant CORAM: R.K. DESHPANDE, J. DATE : 13TH AUGUST, 2009. P.C. : 1. These are the appeals challenging the order dated 10.11.2008 passed by the learned Member Motor Accident Claims Tribunal, Nandurbar allowing an application Exh.5 filed by the original claimants, in Motor Accident Claim Petition Nos. 57/2007, 59/2007 and 58/2007. 2. The case of the respondents/claimants is that on 21.10.2006 2 at about 02.00 p.m. on Sakri-Nandurbar road in Ashte Vihar within the limits of Nandurbar Taluka Police Station, an accident arose out of the use of Wagon-R car No.MH-18/H-406 owned by the respondent No.2 in all these appeals. The original claimants-respondent No.1 herein in all these appeals have filed Motor Accident Claim Petitions No. 57/2007, 59/2007 and 58/2007 before the Motor Accident Claims Tribunal at Nandurbar. In all these petitions, an application under section 140 of the Motor Vehicles Act, 1988 was filed (Exhibit. 5). The learned member of the Motor Accident Claims Tribunal, Nandurbar vide his order dated 10.11.2008 passed below application Exh.5 filed in all these claim petitions, passed an order directing the appellant-insurance company along with the respondent No.2 the owner of the vehicle, to pay jointly and severally interim compensation of Rs.25,000/- to the claimants within a period of one month from the date of the order, failing which an amount of interest @ 10% p.a. was also made payable. This order dated 10.11.2008 passed in all these motor accident claim petitions, is the subject matter of these appeals. 3. The Tribunal considered the defence raised by the appellant- insurance company that i) the insurance policy of the vehicle in question is 'B' package policy 3 and risk of the occupants is not covered. ii) The driver of the vehicle was not holding a valid driving licence. The Tribunal recorded the finding that the insurance company has accepted the personal accident risk of four persons and accordingly to the extent of Rs.1,00,000/- (Rs. one lac) each person has also been paid. It has further held that no case is made out by the offending vehicle was used by the claimants or by owner of the offending vehicle for commercial use. It has further held that bare perusal of the policy indicate that use of the offending vehicle by another person permitted by the owner has not been prohibited. It has further held that owner has paid premium to cover the personal accident of unnamed passengers four in numbers, including the driver at Rs.200/- and Rs.100/- respectively. It has further recorded the finding that there is no violation of the terms of the policy. It has further held that the driver was holding a valid driving licence. 4. The learned counsel Shri Upadhye appearing for the appellants in all these appeals urged that matter is covered by the Apex Court judgment reported in 2009 (3) TAC page 13 (S.C.) Ningamma and another vs. United India Insurance Company Limited, in which it was held that the legal representatives of a person who was driving the motor 4 vehicle after borrowing it from real owner meets with an accident without involving any other vehicle, would not be entitled to compensation under section 163-A of the Motor Vehicles Act, 1988. He has further relied upon the decision of the Apex Court reported in 2008 (7) SCC 425 United India Insurance Company vs. Sarjerao and others that statutory liability of the insurer in respect of "Act Policy" is not covered. The learned counsel further argues that the claimants were sitting in a car which was borrowed from their friend who is the owner of the vehicle and respondent No.2 in the instant case. It is his contention that the persons traveling in the car which met with an accident are not covered by the policy. 5. After going through the judgment cited by the learned counsel for the appellant and also going through the findings recorded by the Tribunal, I am of the view that the questions to be determined in all these motor accident claim petitions, involve disputed questions of facts, which can be gone into only after the parties are permitted to lead evidence, documentary as well as oral. The findings recorded by the Tribunal are based upon a primafacie view of the matter and would not bind the Tribunal even to take contrary view of the matter, at the time of rendering final decision in the petitions. If it is ultimately held that the insurance company is not liable to make the payment or that any of the 5 defence raised by the insurance company is acceptable, then that event the Tribunal can pass an appropriate order in the matter for recovery of the said amount of Rs.25,000/- directed to be paid by the impugned order either from the claimants themselves or from the owner. In view of this, I do not find any reason to interfere with the order passed by the Tribunal, in all these appeals. The appeals are, therefore, summarily dismissed. 6. Needless to say that, none of the observations made either by the Tribunal in the order impugned in the present appeal nor any observation made by this Court on primafacie view of the matter, shall come in the way of the Tribunal while deciding the claim petitions finally. The learned counsel for the appellant states that an amount of Rs.12,500/- has been deposited in each of the matter in this court and said amount therefore be remitted to the Tribunal immediately, for passing appropriate orders. ( R.K. DESHPANDE ) JUDGE ******* aaa/1525.09