IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.594 of 2008 1. BRANCH MANAGER NATIONAL INSURANCE COMPANY BETTIAH ………….OPPOSITE PARTY NO. 3 2. NATIONAL INSURANCE COMPANY LTD. PATNA ……… OPPOSITE PARTY NO. 3 BOTH THROUGH SRI ANJANI KUMAR A.O. CUM DULY CONSTITUTED ATTORNEY NATIONAL INSURANCE COMPANY REGIONAL OFFICE 4TH FLOOR SONE BHAWAN B.C. PATEL ROAD P.O. G.P.O., P.S. SACHIWALAYA PATNA DISTRICT PATNA, ……. APPELLANTS Versus MR.ABHISHEK KAMENDU SON OF LATE DR. KAMTA PRASAD SINGH RESIDENT OF KAMENDU VIHAR HOUSE NO. 0/96 DOCTOR’S COLONY P.S. PATRAKARNAGAR P.O. LOHIANAGER, KANKARBAGH PATNA………(CLAIMANT NO. 1) ……………..RESPONDENT ****** /4/ 06.10.2010 Heard learned counsel for the parties. This Miscellaneous Appeal is directed against the order dated 01.07.2008, passed by the 6th Additional District Judge-cum-Motor Accident Claims Tribunal, Patna, in claim case no. 128 of 2004, by which the petition under Section 140 of the Motor Vehicles Act, 1988, for interim compensation has been allowed, holding that the Insurance Company of a Maruti Car and the owner of the bus are liable equal to the extent of 50% each for contributory negligence. The learned counsel for the appellants, however, contended that according to the claim case is apparent from the interim order itself that the deceased was the owner of the Maruti Car and died out of the collusion of the bus and 2 car, and hence contended that without taking into consideration the fact or an enquiry, the impugned order has been passed by the Tribunal and Tribunal did not go into the question whether the owner of the car can claim compensation for the death while he was driving the car as he is not a third party and the claim is having regard to the fact the claimant being the owner he cannot claim compensation as a third party, and further without any enquiry or holding that there was any negligence on the part of the driver of the Maruti Car, held the appellant liable for contributory negligence and insurance not liable for negligence of owner for his own gain and when finding is recorded that both the vehicles were negligence is without any basis and the impugned order has been passed without any enquiry on the two issues or without framing any issue or going into any enquiry. The learned counsel for the claimant, however, contended that the point raised, but the Insurance Company taken any defence and further the point can be enquired into by the Tribunal after framing the issue. Hence, having regard to the facts and circumstances of the case, that the impugned order has been passed without enquiring into the issue and whether the owner or the Insurance Company is liable to get 3 compensation from the insurer of the Car or whether policy covered the risk of owner in the policy condition to cover owner of the Car as a third party and further without enquiring into the negligence or contributory negligence passed the order, and hence the impugned order is set aside and the case be remanded back for consideration afresh after framing the issues and going after the proper enquiry. With these observations and directions this Miscellaneous Appeal is allowed. Cp:2Safik (Gopal Prasad, J)