1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.2428 OF 2009 (New India Assurance Co.Ltd vs. Asrabai w/o Mahadeo Waibhase and others) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. S.L.Kulkarni, Adv., for the appellant. Mr. S.S.Thombre, , Adv. for respondent 1 and 2. ... CORAM: K.U.CHANDIWAL, J. DATE:3-2-2010 P.C.:- 1. Heard. The directions in Motor Accident Claim Petition No. 87/2006, below Exh.5 in an application under Section 140 of Motor Vehicles Act, to pay Rs. 50,000/- within 45 days, is challenged by the appellant Insurance Company. 2. The Counsel submits that the deceased Mahadeo Sahebrao Vaybhase was traveling in a goods vehicle, established from the statement of the witnesses and it was so indicated even in the pleadings of the Insurance Company in written 2 statement Exh.17. Still, the learned Judge recorded a finding of fixing indemnification to the appellant. 3. The Counsel for the claimant submits, in the light of the judgment of the Apex Court, in the matter of National Insurance company Ltd. Vs. Swaran Singh ( A.I.R. 2004, S.C. 1531), the insurance Company has first to make the payment, then it may recover/realize the same from the owner of the vehicle. 4. The Counsel for the owner of the vehicle placed reliance to the judgment of this Court in Oriental Insurance Co.Ltd. Vs. Nargis ( 2010(1) Mh.L.J.326) to canvass that the liability to pay compensation at an interim stage is on the principle of no fault and interim order could be passed against the owner as well as the insurer in respect of the motor vehicle once the Tribunal is satisfied prima facie that the accident arose out of the use of 3 the motor vehicle. 5. The learned Judge, while passing the impugned order, in second paragraph has stated, there was no serious challenge to the petitioners claim and contention in the application, though he has referred the written statement at Exh.17 stating that there was breach of terms of insurance police, however, skipped the discussion thereof as to liability of the Insurance Company or as to exoneration of the Insurance Company. 6. At this stage of the matter, since main petition is pending adjudication, any comment on the legitimacy of the claim will render the claim petition infructuous. The fact remains, prima facie it appears, deceased Mahadeo was a member of marriage party traveling in a goods vehicle which met with accident on 3rd June, 2005, resulting in loss of life. 4 7. The observation of the Apex Court in the matter of Swaran Singh (supra) was in terms of powers under Art. 136 of the Constitution. The observation of the Brother Judge in the matter of Oriental Insurance Co. Ltd Vs. Nargis wd/o Premlal Janghade and others, referred above, could not be further accelerated as the factual matrix differ. The position of law needs to be considered in the light of the judgment in the matter of Yellwwa & others Vs. National Insurance Co.Ltd ( AIR 2007 S.C. 2582) wherein the Apex Court confirmed that the order in terms of Section 140 of M.V.Act attracts the appellate provision under Section 173 of Motor Vehicles Act and all issues raised by the defense needs consideration. 8. The learned Judge, inspite of there being objection raised by the National Insurance Company, fixed liability of indemnification against it. This needs interference. 5 Consequently, the appeal is allowed as under. The learned Judge seized with the matter shall endeavour to complete hearing in M.A.C.P. No. 87/2006, within reasonable time. The order directing payment of Rs.50,000/- by Insurance Company is set aside. However, if the liability of the Insurance Company is affirmed in petition under Section 166 M.V.Act, the learned Judge is at liberty to award the amount in terms of Section 140 of M.V.Act, as per the Rules. The amount deposited by the appellant Insurance Company is remitted to the learned Member, Motor Accident Claims Tribunal, Beed. (K.U.CHANDIWAL) JUDGE agp/2428-09fa