IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.366 of 2007 BRANCH MANAGER ,UNITED INDIA I Versus PAVAN DEVI & ORS ----------- 8 18.05.2010 Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. The United India Insurance Company Ltd filed this Misc. Appeal against the order dated 23.03.2007 passed by Sri Arun Kumar, the Ist learned Additional District & Sessions Judge-cum-Fast Track Court-cum-Motor Accident Claim Tribunal, Khagaria in Claim Case No. 25/05 whereby the learned tribunal directed the appellant to pay Rs 25,000/- out of Rs 50,000/- awarded under section 140 of the M.V. Act and the rest Rs 25,000/- to be paid by the National Insurance Company Ltd (respondent No. 9 in this appeal). 3. According to the claimant’s case, a truck bearing registration No. BR/12-6004 loaded with cooking gas cylinder dashed the jeep No. BR09C-6777 which was being driven by Sri Kant Gupta, the owner of the jeep, as a result of which, both vehicle caught fire. Five persons of Barat Party sitting in the jeep including the owner Sri Kant Gupta who was driving the jeep died. Subsequently, eight other injured persons also died. 4. The jeep which was being driven by Sri Kant 2 Gupta was insured with United India Insurance Company Ltd and the truck which dashed the jeep was insured with National Insurance Company Ltd. 5. The claimant filed Claim Case No. 25/05 claiming Rs 7, 09,500/- under section 166 M.V. Act. In the said case, an application under section 140 of the M.V. Act was filed. By the impugned order, the learned tribunal directed the appellant-United India Insurance Company Ltd, the insurer of the jeep to pay 25,000/- under 140 M.V. Act. 6. The learned counsel for the appellant submitted that although the appellant in the written statement specifically raised this issue that the appellant is not at all liable to pay any compensation regarding the death of owner-cum-driver of the jeep because for the jeep is concerned, he was not a third party. The learned counsel further submitted that even if he was not driving the jeep then also he was not a third party, therefore, the insurance company is not at all liable to pay because the passengers in the jeep including the driver-cum-owner were third party with respect to the truck which dashed the jeep but without deciding this question of law, the learned tribunal directed the appellant to pay 50 per cent of the interim compensation. 7. The learned counsel for the appellant relied upon the decision of the Hon’ble Supreme Court reported in 3 2004(8) SCC 553 (Dhanraj vs New India Assurance Company) and another decision of the Hon’ble Supreme Court reported in 2006(9) SCC 174 (New India Insurance Company Ltd vs. Meerabai & others). 8. On the other hand, the learned counsel for the respondent No. 8 & 9 (National Insurance Company Ltd) submitted that while deciding interim compensation under section 140 of the M.V. Act, the tribunal is not required to go into the question as to who is in fault. Therefore, according to the learned counsel, the learned tribunal has rightly directed the appellant to pay 50 per cent of interim compensation. The learned counsel relied upon decisions reported in 2001(4) PLJR 557 (The New India Insurance Company Ltd vs. Faida Hussain & Anr.) and 2001(3) PLJR 618 (Oriental Insurance Company Ltd and Anr vs. Most. Manorama Devi & Ors.) 9. In view of the above facts and circumstances of the case, the only question to be decided in this case is whether the learned tribunal while deciding the matter of interim compensation u/s 140 M.V. Act could have directed the appellant to pay 50 per cent of the interim compensation without deciding the question of law raised by the appellant. 10. The learned counsel for the respondents (National Insurance Company) relied upon the decision of this Hon’ble Court i.e. (i) 2001(4) PLJR 557 (supra). 4 11. From perusal of the said decision, the Division Bench of this Hon’ble Court has held that detailed procedure meant for disposal of claim u/s 166 is not required to be followed. It appears that in that case the claimants filed independent application u/s 140 of M.V. Act & the argument of the insurance company before this Hon’ble Court was that it is not maintainable. This Hon’ble Court held that independent application u/s 140 of the M.V. Act is maintainable. This Hon’ble Court also considered the decision of various High Courts and also the Hon’ble Supreme Court from which it emerge that the principle of no fault liability is needed out of a sense of humanity and having due regard to the handicapped of the innocent victim in establishing the negligence of the operator of the vehicle, a blank liability must be cast on the insured instead of its being restricted to cases where the vehicle operator has been shown to be negligent. The poverty of the ordinary run of victim of automobile accident, the compulsory nature of the insurance of motor vehicles, the nationalization of general insurance company, the law of torts based on no fault needs reform. Further in that case, this Hon’ble Court considered the no fault liability vis-à-vis insurance company & owner. In the present case, at hour hand, the matter is otherwise. In the present case, it is insurance vs insurance. It is an admitted case that the deceased was in the jeep and 5 the truck dashed the jeep as a result of which the vehicle burnt causing death. The only dispute is that the deceased being the owner was not driving the jeep. This question will be considered later on after considering the other decision cited by the respondent-National Insurance Company Ltd. i.e. 2001(3) PLJR 618. 12. From perusal of the decision, it appears that in that case also, the dispute was between the owner of the vehicle and the insurer of the vehicle. 13. In a decision reported in 2004(8) SCC 553 (supra) cited by the appellant, the Hon’ble Supreme Court has held that section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. It appears that in that case also the owner was travelling in his own jeep with others. In that case also many persons were injured. Others were awarded compensation but the owner’s application for compensation was rejected by the Hon’ble High Court holding that as the appellant was the owner of the vehicle, the insurance company is not liable to pay him any compensation. The Hon’ble Supreme Court upheld the decision. Therefore, the owner driving himself or not driving is not so very material. In any case, the insurance company is not liable to pay compensation to the owner. 14. Following this decision the Hon’ble Supreme 6 Court in another decision, i.e. 2006(9) SCC page 174 (supra) held that owner of vehicle is not covered even if he was driving the vehicle. This question has therefore, been settled by the Hon’ble Supreme Court and for deciding this issue, no full fledged procedure as required for deciding 166 claim is required to be followed. This is a pure question of law. Therefore, on the pretext that this is an application u/S 140 of M.V. Act , the appellant who is not liable to pay the interim compensation cannot be directed to pay the same. Moreover, the appellant has specifically raised this issue which is reiterated here again that it is a pure question of law. 15. In view of the above discussion, the decisions cited by the learned counsel for the respondents are not applicable in the present facts and circumstances of this case and therefore, don’t help the respondents. 16. In view of the above settled principles of law laid down by the Hon’ble Supreme Court, in my opinion, since the insurance policy itself does not cover the owner of the jeep, the insurer that is the appellant is not liable to pay interim compensation. 17. In the result, the impugned order is set aside. The National Insurance Company i.e. insurer of the truck shall pay the entire interim compensation to the claimants. 18. The statutory amount deposited by the 7 appellant be returned to the appellant. In the result, this appeal is allowed. AKV/ (Mungeshwar Sahoo,J.)