IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.135 of 2011 Kapildeo Rai, , Son of Late Narayan Rai, Resident of Village – Shankhi, Police Station – Riga, District – Sitamarhi ……. (Opposite Party No. 1)- Appellants Versus 1. Nagendra Thakur , Son of Late Ram Chandra Thakur, Resident of Village – Shaukhi, Police Station – Riga, District – Sitamarhi (Applicant). 2. Oriental Insurance Company Ltd., Branch Office, Sitamarhi, Post Office, Police Station and District – Sitamarhi. ……… (Opposite Party No. 2) – Respondents ----------- 5 28.07.2011 Heard Sri Suraj Narayan Yadav, who was assisted by Sri Anil Kumar, learned counsel for the appellant, Sri Abhinash Kumar, who was assisted by Sri Shankar Kumar, learned counsel for Respondent No. 1/Claimant and Sri Sanjay Singh, learned counsel appearing on behalf of Respondent No. 2/ Oriental Insurance Company Ltd. The present appeal has been preferred by the owner of the offending vehicle against an order dated 21.01.2011 passed in Claim Case No. 01 of 2008 by learned Additional Sessions Judge/ F.T.C.- I, Sitamarhi under Section 140 of the Motor Vehicle Act, 1988 directing the owner/appellant to make payment of interim compensation of Rs. 50,000/- to the claimant. The appellant, while questioning the impugned order has taken a plea that it is true that the offending vehicle was in his possession and he was the owner of the vehicle at the time of accident but as per the provisions contained in Section 2(30) of the Motor Vehicle Act the registered owner was someone else from whom he had purchased the offending vehicle. The other plea which has been taken for challenging the impugned order is that though in the F.I.R. driver of the offending vehicle was made accused for offence under 2 Sections 279, 304A and 338 of the Indian Penal Code the Police during investigation found the case as untrue and final report was submitted by the Police. Learned counsel for the appellant has drawn my attention to ‘Annexure – 2’ to the petition i.e. a photo copy of the final report dated 30.08.2007. In this case, F.I.R. was registered on 11.06.2007 on the basis of fard-beyan of the claimant which was recorded by Sub- Inspector of Police, Sitamarhi Police Station immediately after the occurrence which took place on 09.06.2007 at about 7.30 A.M. Fard- beyan was recorded at 10.00 A.M. on the same date which is evident from ‘Annexure – 1’ to the memo of appeal. Learned counsel for the appellant has relied on a recent judgment of the Hon’ble Apex Court reported in 2011(1) BLJ 215 (SC) (Pushpa @ Leela & Ors. Vs Shakuntala & Ors). Learned counsel for the appellant has specifically referred paragraph nos. 9, 10 & 11 of the aforesaid judgment and submits that in view of law laid down by the Hon’ble Apex Court the appellant cannot be held liable for making payment of compensation amount in view of the fact that the appellant was not registered owner of the offending vehicle. Learned counsel for the Respondent No. 1 submits that it is true that Police almost within a month from the date of F.I.R. had submitted final report but on protest petition filed on behalf of Respondent No. 1/claimant the learned Magistrate has already taken cognizance of the offence against the driver of the offending vehicle. It was submitted that the appellant has suppressed this fact. Learned 3 counsel for the appellant has controverted the allegation made by learned counsel for Respondent No. 1. It was submitted that he has made specific statement in the memo of appeal that after filing of the Final Report protest petition was filed and on protest petition after taking cognizance court had proceeded with the case and during the trial altogether seven (07) witnesses were examined and matter is still pending. It was further submitted by learned counsel for the Respondent No. 1 that since the appellant has not disputed his ownership over the vehicle in question on the date of occurrence, prima facie for payment of interim compensation the appellant has rightly been directed by the court below for making payment. Sri Sanjay Singh, learned counsel for the Respondent No. 2 submits that it is admitted fact that at the time of accident the offending vehicle was not insured and even then the Oriental Insurance Co. Ltd. has been impleaded as party in the court below as well as before this court. Besides hearing learned counsel for the parties I have also perused the materials available on record. Before coming to a definite finding in the present case it would be necessary to indicate some important facts of the case which is mentioned hereinafter: It was the case of claimant that on 09.06.2007 while mother of the Respondent No. 1 was sitting by the side of village road a tractor bearing Registration No. BR-06D9852 being rashly and 4 negligently driven by the driver who was none else but the son of the appellant dashed the mother of the claimant. Immediately thereafter she was carried to the hospital. However, on the way she succumbed to the injury and as such she was declared dead by the Medical Officer which is evident from Annexure – 1 to the memo of appeal. The fard- beyan of respondent was immediately recorded at about 10 A.M. on the same date while accident had taken place at 7.30 A.M. in the morning on the same date which is evident from Annexure -1 to the memo of appeal. After recording fard-beyan F.I.R. was registered on 11.06.2007 vide Riga P.S. Case No. 88 of 2007 under Sections 279, 304A & 338 of the Indian Penal Code against the driver of the vehicle i.e. Ashok Yadav, son of the appellant / owner of the offending vehicle. It further appears from ‘Annexure – 2’ that Police without any delay on 30.08.2007 submitted Final Report indicating therein that case against the driver of the tractor namely Ashok Yadav was untrue. It was submitted by learned counsel for Respondent No. 1 that thereafter a claim case was filed under Section 166 of the Motor Vehicle Act for compensation of Rs. 3,00000/- and in the said case a separate petition under Section 140 of the Motor Vehicle Act was filed for making payment of interim compensation for an amount of Rs. 50,000/-. From the impugned order it is evident that the learned court below after being prima facie satisfied that the offending vehicle in question was not insured, the appellant was the purchaser of the 5 vehicle and on the date of occurrence the vehicle in question was in his possession and while being used for the purposes of the appellant accident had taken place, the learned ‘Tribunal’ has passed the impugned order for interim compensation directing the appellant to make payment. The proposition of law which has been indicated by the Hon’ble Apex Court in Pushpa’s Case (Supra) is not in dispute. However, the judgment relied upon by the appellant may not help the appellant in view of facts and circumstances of the present case. While hearing a petition under Section 140 of the Motor Vehicle Act the Court is required to be prima facie satisfied on the basis of material available on record. At the time of hearing a petition under Section 140 the claimant is not required to lead evidence to establish his case. This is evident from Section 140(3) of the Motor Vehicle Act which is as under: “140(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.” In the Pushpa’s Case (Supra), after evaluating the evidence the Claim Tribunal had awarded final compensation amount. In the said case despite the fact that vehicle in question was sold the vehicle got insured in the name of original owner i.e. registered owner of the vehicle. Moreover, the said case was considered in a case in which entire evidence was evaluated and thereafter finding was 6 recorded. So far case in hand is concerned, in this said case none of the parties had laid evidence before the court below and in terms of Section 140 of the Motor Vehicle Act for interim compensation the petition was filed and it was allowed. In view of peculiar facts and circumstances of the present case no benefit can be given to the appellant on the basis of Pushpa’s Case (Supra) and said case has got no application for deciding the present case. So far as argument advanced by learned counsel for the appellant that Police had submitted Final Report and as such the appellant was not liable to make payment of compensation amount is concerned, the court is of the opinion that Final Report was submitted in favour of the driver of the vehicle who was alleged for committing offence under Sections 279, 304A & 338 of the Indian Penal Code and moreover after filing of the Final Report on protest petition the learned court below had already taken cognizance and proceeded with the case. In view of the fact that the son of the appellant who was driving the vehicle at the time of occurrence was made F.I.R. named accused and the competent court had already taken cognizance of the offence against the driver of the vehicle the court is of the opinion that those materials are sufficient to form a prima facie opinion that at the time of accident the appellant who was owner of the vehicle, was only person to compensate the claimant since the vehicle in question was not insured at the time of accident and as such the court is of the 7 opinion that while allowing petition filed by Respondent No. 1/claimant the learned court below has committed no error. The order impugned requires no interference. Appeal stands rejected. In view of rejection of the appeal the office is directed to remit back the statutory amount deposited at the time of filing of the appeal to the court below for its payment to the claimant. It is made clear that the Bank Draft should be prepared in the name of claimant while remitting back the same for its payment to the claimant. Praful ( Rakesh Kumar, J.)