1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 1205/2009 (The Branch manager United India Insurance Co.Ltd. vs. Ashrabee Sheikh wd/o Gulab Agwan and others ) ------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Mr D N Kukday, Adv.for appellant Ms. M H Pathade, Adv.h/for P S Mirache, Adv.for R-1 & 2 Coram : A.P.BHANGALE, J. Dated : 18 th November, 2009 Heard. 2. By this Appeal, the appellant- United India Insurance Company Limited (insurer), is seeking to challenge the award passed on 4th July 2007 by the Chairman, Motor Accident Claims Tribunal, Nagpur in Claim Petition No.954/2005 thereby directing the insurer along with owner of the vehicle as well as present appellant to deposit a sum of Rs. 50,000/- as compensation on the principle of “no fault liability” flowing from section 140 of the Motor Vehicles Act, 1988 ( in short “the said Act”) within 30 days from the date of order, failing which further direction to pay interest at the rate of 7.5 per cent per annum on the amount awarded till its realization. 2 3. Learned Advocate appearing on behalf of the appellant contended that the Motor Vehicle bearing Registration No. MH-31/ AH 2590 - Toyato Qualis, was taken to forests area in the District of Gondia on 30.5.2005 when at about 16.35 hours, the incident of bomb blast occurred resulting into damage of the vehicle as also the death of Sheikh Shameer and some constables who died on the spot. It is further contended that the bomb was implanted by terrorists in that area. 4 In a claim filed by claimants representing Sk.Shameer i.e. mother and brother of the deceased, made claim u/s 140 of the said Act. 5. It is not in dispute that on the date of incident, insurance policy was operating and was between owner of the offending motor vehicle and the United India Insurance Co.Ltd. The validity period was between 11.6.2004 to 10.6.2005. 6. The appeal has been opposed on the ground on account of no fault liability u/s 140 of the said Act, once it is prima facie established that the incident arose out of use of the motor vehicle, it resulted in death or permanent disablement of the person concerned and that the claim has been made against owner and the insurer of the motor vehicle involved in the incident of accident, there are no further requirement to pass an award as to provisional compensation payable under section 140 of the said Act i.e. Rs. 50,000/- in case of death; and, Rs. 25,000/- in case of permanent disablement. Bearing in mind these conditions, I think the claimants preferred the claim in prescribed format under section 140 of 3 the said Act as amended, giving necessary particulars and details so as to consider the provisions of Chapter X in respect of liability without fault in certain cases and in particular considering the overriding effect given to those provisions by section 144 of the Act. 7. The ruling cited by learned Advocate for the appellant i.e. National Insurance Company Ltd. Tirupur vs. R.Mohan & R.Murthy reported in II (1995) ACC 484 ( Madras High Court : Division Bench) ; and ruling in Oriental Insurance Co .Ltd. vs. Ram Kumar and another reported in 1991 ACJ 1091 cannot come to the rescue of the appellant, in view of the amended provisions up to date in the said Act as also not fault liability of the owner as well as insurer flowing from Chapter X of the Motor Vehicles Act that such liability at interim stage of the accident claim which is required to be heard and decided finally u/s 166 of the said Act. The liability is absolute notwithstanding from the wrongful act, neglect or default of the claimant for permanent disablement or of the deceased victim as the case may be, which need not be pleaded or established. Even otherwise, the petition u/s 166 of the said Act is not condition precedent for applicability of Section 140 of the said Act. Once it is prima facie established that the incident or accident arose out of use of motor vehicle concerned which resulted in death or permanent disablement in a claim against the owner and/ or insurer of the motor vehicle concerned, the award can be passed u/s 140 without requirement of proof of wrongful act, default or neglect on the part of the claimant who is permanently disabled or deceased victim as the case may be. Hence no case is made out so as to interfere in the impugned order. The Appeal is dismissed. 4 8 The contention as to the jurisdiction of the Motor Vehicles Claims Tribunal to entertain the petition u/s 166 of the said Act, is kept open to be decided at the final hearing of Claim Petition under section 166 of the Act. JUDGE. sahare