IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.74 of 2009 National Insurance Company Ltd. Katihar Branch at Vaishali Complex, Dr. R.P.Road, through its Branch Manager, P.O. & P.S. Katihar, District-Katihar ( Opp.Party no.2) -------------------- Appellant Versus 1. Mostt.Rumela Khatoon , widow of Late Md. Mannan 2. The Maquim, minor son of Late Md. Mannan 3. Md. Rahish, minor son of Late Md. Mannan 4. Md. Dalim, minor son of Late Md. Mannan 5. Md. Rakim, minor son of Late Md. Mannan 6. Sabila Khatoon, minor daughter of Late Md. Mannan 7. Sabina Khatoon, minor daughter of Late Md. Mannan Residents of 2-7 are minors under the natural guardianship of their mother- Respondent no.1 All are residents of Village-Kast Hower, P.S. Manshari, District-Katihar (Claimants) -------------- Respondent 1st Set 8. Najir Hussain S/O Sayeed Ali, resident of Village- Kast hower , P.S. Manshari, District-Katihar( Owner of Tractor No.BR-39(A) 608 and Trailer no.BR-39(A)- 609 ) ( Opp.Party no.1) ---------- Respondent 2nd Set. ---------------------------------- 11 19-08-2011 Heard Sri Prakash Kumar, learned counsel for the appellant. The Interlocutory Application i.e. I.A.No. 3200 of 2009 for condoning delay of sixty four days in filing the present appeal is allowed in view of the grounds set forth in the petition. The present appeal has been preferred under Section 173 (1) of the Motor Vehicles Act,1988 ( hereinafter referred to as “ the Act”) against an order dated 18.8.2008 passed in M.V. Claim Case No.28 of 2002 by 1st A.D.J.-cum- Motor Accident Claims Tribunal , Katihar ( hereinafter referred to as “ the Claims Tribunal”). By the 2 said order, the learned Claims Tribunal has allowed the petition filed under Section 140 of the Act and directed the appellant (insurer of the offending vehicle) to pay interim compensation of Rs.50,000/- to the claimants. Short fact of the case is that the claimants had filed a claim case in the Claims Tribunal disclosing therein that Md. Mannan , husband of Respondent no.1 and father of Respondent nos. 2 to 7, was a labourer and while he was travelling on a tractor attached with trailer loaded with goods , due to rash and negligent driving of the driver the tractor turned down and in the said accident, the driver as well as husband of Respondent no.1 died. After filing of the claim petition, a petition under Section 140 of the M.V. Act was filed for interim compensation before the court below. it was admitted by the parties including the appellant that the tractor having Registration no.39 (A)-608 and trailer attached with the tractor having Registration no.39 (A)-609 were insured by the appellant, i.e. the National Insurance Co. Ltd. It was also admitted that the driver of the tractor at the time of accident was having valid driving licence, which is evident from the order dated 18.08.2008 passed by the Claims Tribunal. Before the Claims Tribunal, a plea was taken on behalf of the insurer that the death had occurred due to fault on the part of the deceased himself and, as such, the Insurance Company was not liable to indemnify the owner of the vehicle. After hearing the parties, the Claims Tribunal allowed the claim petition filed for interim compensation under Section 140 of the M.V.Act. 3 Sri Prakash Kumar, learned counsel for the appellant, while challenging the impugned order, has argued that before the court below a detailed written statement was filed on behalf of the appellant, wherein it was contended that the offending vehicle was rashly and negligently driven by the driver and person other than the driver was not liable to be compensated by the insurer. It was further submitted that the vehicle was insured for agriculture purpose and not for commercial purpose. It was pleaded in the written statement that the owner of the vehicle was carrying goods of another person, which was sufficient to establish that the offending vehicle was not being used for agriculture purpose and, as such, the owner had violated terms and conditions of the insurance policy and, as such, the owner was liable to pay even the interim compensation amount. In support of his argument, Sri Prakash Kumar, learned counsel for the appellant has firstly referred to a Judgment of the Apex Court reported in (2007) 7 SCC 56 ( The Oriental Insurance Co. Ltd. Vs. Brij Mohan ). Learned counsel for the appellant has further relied upon a Judgment reported in (2008) 7SCC 425 (Unitend India Insurance Company Ltd. Vs. Serje Rao & Ors.). It was submitted that in Serje Rao’s case (supra), the question for interim compensation granted under Section 140 of the M.V.Act was involved and the Supreme Court has held that even at the time of hearing a petition under Section 482 of the Code of Criminal Procedure, liability was required to be examined. On the aforesaid ground, it has been prayed to set aside the impugned order. On perusal of the impugned order, there is no 4 ambiguity on the point that the offending tractor and trailer attached with the tractor were insured by the appellant. It is further evident from the impugned order that the driver was having valid driving licence. It was not the specific case of the appellant that the deceased was travelling on the trailer. From the materials available on record, it is difficult to come to a definite finding as to whether the deceased was on trailer or on tractor. In the accident, the husband of Respondent no.1 died. There is specific statutory provision under the M.V. Act that at the time of hearing a petition filed under Section 140 of the M.V. Act, the claimant may not be asked to lead evidence and establish the case for claiming interim compensation. The interim compensation is granted on no fault liability. Section 140 (3) of the M.V.Act makes it clear that no evidence is required to be led at the time of pressing a petition for interim compensation. At the time of hearing a petition under Section 140 of the M.V.Act, only prima facie satisfaction is sufficient, which would be on the basis of materials brought before the court below. So far Brij Mohan’s case (supra) is concerned, in the said case, it was not clear as to whether trailer of the tractor was insured or not and in that context, the order was passed. In the light of the said decision, the Apex Court in Serje Rao’s case has set aside the order passed under Section 140 of the M. V. Act. In the said case also, the fact was not similar to the case in hand. Moreover, in the present case, the main claim petition appears to have been filed in the year 2002. Learned counsel for the appellant has admitted before the Court that the main case i.e. the petition 5 filed under Section 166 of the M.V. Act is still pending. It is not in dispute that the M.V. Claims Tribunal Act is a social Act and moreover, Section 140 of the M.V. Act is for providing interim compensation. In such a situation, particularly in view of facts and circumstances of the present case, it would not be appropriate to entertain the appeal against the order passed under Section 140 of the Act long back in the year 2008. Accordingly, the Court is of the opinion that the impugned order may not be interfered with and the appeal stands rejected. Keeping in view the fact that the claim case is pending since 2002, the court below is required to conclude the main case expeditiously without any delay. In view of dismissal of the appeal, the Office is directed to remit back the statutory amount, which was deposited at the time of filing of the present appeal for its payment to the claimants. It goes without saying that if finally the claim is concluded not against the appellant i.e. the National Insurance Company Ltd., the appellant will be entitled to recover the compensation amount from the owner of the vehicle. NKS/- ( Rakesh Kumar, J.)