1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 3718 OF 2008 The Oriental Insurance Company Ltd. Head and Regd Office at Oriental House, P.B. No. 7037, A 25/27/Asaf Ali Road, New Delhi 110 002, Branch at Bhavsar Complex 5th Lane Dhule, The Divisional Office at Dr. Rajendra Prasad Marg, Aurangabad Through its Divisional Manager Shri. Akhtar s/o. Abbas Halari ....Appellant. Versus 1. Shri. Dharma Lahanu Borkar, 2. Sau. Savitribai w/o. Dharma Borkar, Both residing at Gangapur, Tq. Sakhari, Dist. Dhule. 3. Shri. Dattatray Vithal Kevode, R/o. Wadi Shewale, Tq. Pachora, Dist. Jalgaon. 4. Shri. Subhash Namdeo Parkhe, R/o. Wadi Shewale, Tq. Pachora, Dist. Jalgaon. 5. Smt. Sima w/o. Malhari Borkar, 6. Rushikesh s/o. Malhari Borkar, 7. Pranita d/o. Malhari Borkar, Nos. 6 & 7 are monors through their legal guardian Sima /o. Malhari Borkar, R/o. of 5 to 7 C/o. Shri. Vasant Nimba Thorat, R/o. Adarsha Nagar, Sakri, Tq. Sakri, Dist. Dhule. ....Respondents. 2 Shri. V.N. Upadhye, Advocate for the appellant. Shri. G.K. Kshirsagar Advocate h/f. Shri. N.L. Choudhari, Advocate for the respondent Nos. 5 to 7. Shri.A.B. Kharosekar, Advocate for the respondent Nos. 3 and 4. CORAM : R.K. DESHPANDE, J. DATE : 18th September, 2009 ORAL JUDGMENT : 1. This appeal preferred by the Insurance Company, challenges the order below Exh. 5 passed on the application under section 140 of the Motor Vehicles Act, 1988 by the Motor Accident Claims Tribunal, Dhule, directing the appellant, the driver and owner of the offending vehicle to pay jointly and severally no fault liability amount of Rs.50,000/- to the claimants, who are respondent Nos. 1 and 2 in MACP No. 19/2007. 2. On 29th of September 2008 this Court issued notice before admission to the respondents, which was returnable on 10.11.2008 and an interim order was also passed and the execution and operation of the impugned order was stayed. On 27th of April 2009 this Court put the parties on notice that the matter shall be heard finally at the stage of admission. Thus, the matter is listed today. 3. Heard Shri. Upadhye, the learned counsel for the appellant/ 3 Insurance Company and Shri. G.K. Kshirsagar holding for Shri. N.L. Choudhary appearing for respondent Nos. 5 to 7. Admit. With the consent of parties, the matter is heard finally. 4. The main challenge of the appellant Insurance Company in this appeal is that the offending vehicle which is the trolley, was standing by the side of the road, loaded with sand and was put on the jacks as it was in punctured condition. The trolley was not attached to the tractor. The deceased Malhari Dharama Borkar, who was driver of the motorcycle bearing No. MH-18/S-7710, gave a dash to the trolley No. MH-19/P-8420 on 7.3.2006. As a result, he suffered injuries and died. According to the learned counsel for the appellant, the trolley was not insured with the appellant Insurance Company, although the tractor bearing No. MH-19/1354 was insured with the appellant Insurance Company and its insurance was valid on the date and time of the accident. According to the learned counsel for the appellant, the tractor was not on the spot and the trolley not being insured, the liability of the Insurance Company does not at all arise. The learned counsel Shri. Upadhye has relied upon the judgment of the Calcutta High Court reported in 2008(2) T.A.C. 860, Calcutta Smt. Thakamoni Santra and others Vs. New India Assurance Company Ltd. and another, in which it has been held that the victim was traveller of trolley, which was attached to the tractor and the Insurance Company had no liability, as the trolley attached to the tractor was not insured. The learned counsel Shri. Upadhye further 4 relied upon the decision of the Apex Court reported in (2008) 7 SCC 475, United India Insurance Company Vs. Sarjerao to urge that the labourers who have travelling in the trolley, attached to the tractor, were not covered by the policy and hence, the insurer was not liable to pay the compensation. He further relied upon the para No. 6 of the said judgment. 5. The learned counsel Shri. G.K. Kshirsagar, appearing for respondent Nos. 5 to 7, urged that the questions whether the trolley was attached to the tractor and whether the Insurance Company is liable to pay the compensation, are of disputed questions of facts, which will have to be gone in to after holding an inquiry by the Tribunal. The learned counsel has pointed out the averments made in the application under section 140 of the said Act, wherein it has been averred that the tractor No. MH-19/1354, fixed with trolley No. MH-19/P-8420, was standing stationary on the road in dangerous condition without giving any signal to the vehicles running on the road. The learned counsel has placed his reliance on the judgment reported in 2008 (2) T.A.C. 582, United India Insurance CompanyLtd. Vs. Koduru Bhagyamma and others. Relying upon the observations made in para No. 5 and, he urged that the disputed question is required to be decided in the light of the provisions of section 2 (28) of the Motor Vehicles Act. He has further urged that in this judgment, the Division Bench of the Andhra Pradesh High Court has held that though the trailer, which was attached to the 5 tractor, was not insured with the Insurance Company, the liability could be fasten upon the Insurance Company. 6. After going through the judgments and the pleadings on record, I am of the view that there are disputed questions of facts as to whether the trolley was standing by the side of the road, unattached to the tractor or whether the Insurance Company is liable to pay the compensation. The Tribunal has passed an order on the basis of his prima facie opinion expressed on the application Exh. 5 filed under section 140 of the said Act. The judgments relied upon by the parties cannot be applied at this stage, as the trial is yet to begin and the evidence is not yet available on record. In view of this, I do not find any substance in the present appeal and the same is, therefore, dismissed with no order as to costs. 7. The appellant Insurance Company has deposited an amount of Rs. 25,000/- on 25th of September 2008 in this Court. The same shall be immediately remitted to the Tribunal for passing further appropriate orders. [ R.K. DESHPANDE, J. ] ssc/fa3718.09