IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.889 of 2010 The Branch Manager, National Insurance Co. Ltd. M.G. Road, New Area, Aurangabad (Bihar) represented through the Chief Regional Manager and the constituted Attorney, Regional Office, National Insurance Co. Ltd., 4th Floor, Sone Bhawan, B.C. Patel Path, P.S. Sachivalaya, District – Patna. …………….. O.P. No. 5 …………………….. Appellant Versus 1. Aditya Singh Son of Late Kailash Singh. 2. Lalti Devi Wife of Late Dharmendra Kumar alias Doman alias Chhotu. 3. Kushum Devi Wife of Aditya Singh All residents of Village – Belkhara, P.S. – Karpi, District Arwal, At present of New Area, Aurangabad, District (Bihar) ………….. Claimant ……………… Respondent Ist Set. 4. The Branch Manager, The Oriental Insurance Co. Ltd. Pali Road, Dehri-on- Sone, Rohtas (Bihar). ……………. O.P. No. 1 5. Sri Vinod Tiwary, Son of Dewa Nand Tiwary, Resident of Old Police Line, Arrah, P.S. – Arrah Town, District – Bhojpur, Bihar. (Owner of the vehicle Bus No. BR-3P/0854) …………… O.P. No. -2 6. Sri Surya Bansh Ray Son of Sri Shivam Ray a resident of Village – Majhauan, P.S. Arrah Town, District – Bhojpur, Bihar. (Driver of Bus No. BR-3P/0854) …………… O.P. No. 3 7. Sri Dhananjay Kumar Son of Radha Kant Mehta, Resident of Village and Post – Belkhara, P.S. – Karpi, District – Jehanabad, Bihar (Owner of Vehicle Commander Jeep No. BR-2B/1194) …………. O.P. No. 4 ………….. (O.P. No. 1, 2, 3 and 4) ………….. Respondent 2nd Set. ----------- 4 04.08.2011 Heard Sri Raj Kumar Singh Vikram, learned counsel for the appellant and Sri Ashok Priyadarshi, learned counsel appearing on behalf of Respondent No. 4/Branch Manager, The Oriental Insurance Co. Ltd. The present appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 against an Order dated 12.08.2010 passed by the Additional District Judge (Fast Track Court No. II)- cum-Motor Vehicle Accident Claim Tribunal (hereinafter referred to as the „Claim Tribunal‟) in M.V. Case No. 33 of 2010. By the said Order the learned „Claim Tribunal‟ has allowed a petition filed under 2 Section 140 of the M.V. Act for interim compensation filed by the claimants. Short fact of the case is that on 01.03.2007, a Commander Jeep bearing Registration No. BR-2B/1194 being driven by one Chhotu Kumar dashed with a Bus bearing Registration No. BR- 3P/0854 near Dhanupra Village, P.S. – Arrah, District – Bhojpur on N.H. 30. In the said accident besides driver of the Commander Jeep others also died and several received serious injuries. At the relevant time the Commander Jeep was carrying a Barat Party. It appears from paragraph no. 3 of the memo of appeal that “on 01.03.2007 on N.H. 30 at about 2.45 P.M. while the Commander Jeep was trying to over take a Marshal vehicle the Commander Jeep dashed from Bus No. BR-3P/0854 and the driver of the Commander Jeep named Chhotu alias Doman, Ram Prasad Singh, Sarju Prasad Singh and Fufa of the bride died on the spot while Dharamvir Kumar, Manish Kumar, Ramanand Singh, Chhotu Kumar and Ram Suresh Singh were injured. Dharamvir Kumar, Manish Kumar and Ramanand Singh succumbed to their injuries during treatment.” After the accident a case vide Arrah (Town) P.S. Case No. 41 of 2007 was registered on the fard-beyan of one Ajit Kumar and after investigation charge-sheet was submitted against the driver of the Bus showing death of the driver of Commander Jeep. It appears that after the accident a claim petition was filed which was numbered as M.V. 33 of 2010 and a petition under section 140 of the M.V. Act was filed for interim compensation. After hearing the parties the learned 3 „Claim Tribunal‟ by Order dated 12.08.2010 allowed the petition for interim compensation and directed insurers of both the offending vehicles i.e. the Commander Jeep as well as Bus to share interim compensation amount of Rs. 50,000/- equally. Accordingly, the appellant (insurer of the Commander Jeep) was directed to pay Rs. 25,000/- as interim compensation to the claimants. Sri Raj Kumar Singh Vikram, learned counsel for the appellant while challenging the impugned Order submits that the learned „Claim Tribunal‟ was atleast required to conduct an enquiry under Section 141 of the Motor Vehicle Act and only thereafter the learned „Claim Tribunal‟ was required to pass an Order. He submits that it is true that accident had occurred but in the accident there was no fault on the part of the driver of the Commander Jeep. It was submitted that it was completely rash and negligent act of the driver of the offending Bus and due to that reason Police after investigation submitted charge sheet against the driver of the offending Bus. It was submitted that it was not a case of contributory liability and as such only Respondent No. 4 i.e. Oriental Insurance Company Ltd. was liable to be directed to pay even the interim compensation amount. In support of his argument for conducting an enquiry learned counsel for the appellant has relied on two un-reported Orders/Judgments passed by a Single Bench of this Court. First of all learned counsel for the appellant has referred to an Order dated 28.04.2010 passed in Miscellaneous Appeal i.e. M.A. No. 64 of 2007 (National Insurance Company Ltd. Vs Laxminia Kuer & Ors.). Secondly he has referred to 4 a Judgment passed by a Single Bench of this Court in Miscellaneous Appeal No. 101 of 2005 (Branch Manager, Branch Office, National Insurance Company Ltd. Vs Kiran Devi & Ors.) dated 23rd September, 2010. On the strength of aforesaid two decisions of this Court it was submitted by learned counsel for the appellant that the present appeal may be allowed. Sri Ashok Priyadarshi, learned counsel for the Respondent No. 4, has opposed the prayer of the appellant. It was submitted by Sri Priyadarshi that it is not in dispute that in the accident both the vehicles i.e. the Commander Jeep and Bus were involved and in that accident death of the driver of the Commander Jeep had occurred in relation to which the claim petition was filed vide M.V. Case No. 33 of 2010. It was submitted that since the driver of the Commander Jeep died in the accident there was no reason for the Investigating Agency to forward him as charge sheeted accused and as such the driver of the Commander Jeep who is deceased in the present case was not made accused while submitting charge sheet by the Police. It was argued that in case of head on collision prima facie it can be considered that it was a case of contributory liability and as such the learned „Claim Tribunal‟ has rightly directed insurers of both the offending vehicles to share equally the amount of interim compensation. I have heard learned counsel for the parties at the admission stage itself without even issuance of notice to all the Respondents. The appeal was heard with the consent of learned 5 counsel for the appellant as well as Respondent No. 4. In the memo of appeal itself there is specific averment in paragraph no. 3 that while the Commander Jeep was trying to over take a Marshal vehicle it dashed with the Bus bearing Registration No. BR-3P/0854. On the own admission of the appellant only inference can be drawn that the driver of the Commander Jeep was driving the vehicle rashly and negligently and only thereafter the Commander Jeep had dashed with the Bus. However, at this moment without allowing all the parties to lead evidence it would not be appropriate for this Court to record any definite finding on this issue but prima facie the Court is satisfied that it was a case of head on collision and as such the learned „Claim Tribunal‟ has rightly directed both the insurers to share the liability of interim compensation equally. So far decision in Laxminia Kuer‟s Case (Supra) is concerned, in that case it was pleaded that tractor in question was insured for only agriculture purpose but while it was being used for commercial purpose, accident had taken place. Accordingly the Court is of the opinion that Order in case of Laxminia Kuer‟s Case (Supra) was passed in different situation. Similarly in Kiran Devi‟s Case (Supra), the Insurance Company had taken specific plea that death in the accident had occurred by a vehicle which was not insured by the Insurance Company and as such the Court is of the opinion that cases on which heavy reliance has been made by learned counsel for the appellant has got no application in the facts and circumstances of the present case particularly in view of the own admission of the appellant 6 in the memo of appeal which indicates that accident took place while the Commander Jeep was trying to over take one Marshal vehicle and only thereafter accident had occurred. Moreover, while hearing a petition under Section 140 of the Motor Vehicle Act it is not required for the Court to ask the claimant to lead evidence and establish the case specifically which is categorically mentioned in Section 140(3) of the Motor Vehicle Act. At the time of hearing a petition under Section 140 of the Motor Vehicle Act the only requirement is prima facie satisfaction of the Court on the basis of materials available on record. In view of the facts and circumstances as discussed above the Court is of the opinion that the learned „Claim Tribunal‟ has committed no error and Order impugned does not require any interference. The appeal stands rejected. In view of rejection of the appeal the Office is required to remit back the statutory amount deposited at the time of filing of the appeal to the Court below for its payment to the claimants. Praful ( Rakesh Kumar, J.)