1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.2909/2000. : : The New India Assurance Company Ltd. Vs. The Judge, MACT, Alwar & Ors. : : Date of Order 21.4.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Tripurari Sharma for the petitioner. Mr. Devendra Chouhan for the respondent (s). Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner- New India Assurance Company assailing the order dated 27.4.2000 by which a sum of Rs.50,000/- was awarded to respondents-claimants under Section 140 of Motor Vehicles Act as interim compensation. 3. Shri Tripurari Sharma, learned counsel for the petitioner has submitted that in the present case owner himself was driving the tractor and he had no license and that accident took place due to his own negligence and the tractor was insured only for third party risk, which could not 2 cover the owner. Learned counsel in support of his arguments cited the judgements in Dhanram Vs. New India Assurance Company Ltd. : 2005 (1) TAC (1) SC and National Insurance Company Ltd Vs. Jethu Ram & Ors. : 1998 (2) TAC, 805 (SC). 4. Shri Devendra Chouhan, learned counsel for the respondents opposed the writ petition and submitted that the writ petition would not be maintainable against the order of interim award. On merit, he submitted that arguments that risk of owner was not covered and the vehicle was insured on third party risk were not raised by petitioner-Assurance Company before the Tribunal and on something which was not urged before the Tribunal, the order passed by the Tribunal cannot be faulted. It is submitted that amount in question has already been received by the respondents and such interim compensation was awarded to the claimants towards no fault liability for which, the Tribunal was not called upon to examine whether or not there was any violation of condition of contract on insurance and to see whether the driver had valid license and the accident did not take place due to his negligence. 3 5. Upon hearing learned counsel for the parties and perusing the impugned order passed by Tribunal, I find that although the Tribunal was cognizant of the arguments raised by petitioner that the driver had no valid license and that accident took place due to his own negligence, but the argument that vehicle was insured for third party risk and, therefore, the owner who incidentally was at the material time driving the vehicle, would not be covered thereby, did not receive consideration of the Tribunal. It appears that in cited judgment especially the judgment of Supreme Court in Yallwwa & Ors. Vs. National Insurance Company Ltd. & Anr. : AIR 2007 (SC), 2582, it has been held that appeal against the interim order was maintainable, but learned counsel for the petitioner has submitted and rightly that earlier, writ petitions used to be entertained against the order passed under Section 140 of the Act, which is when the present writ petition was filed. But since the factual foundation is clear, therefore, in view of the law laid down that writ petition is maintainable against the interim order. I, therefore, decide this writ petition on merits and remand the matter to Tribunal, taking into consideration the arguments raised by petitioner. 4 In the result, this writ petition is allowed. The impugned order dated 27.4.2000 is set aside and the matter is remanded back to Motor Accident Claims Tribunal, Alwar for deciding it fresh. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/26.