IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.201 of 2009 Divisional Manger National Insurance Company Ltd. Patna --- (Opp. Party No. 1 ) 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. ------------------------------ Appellant Versus 1. Aarag Rai , Son of Late Supan Rai, Resident of Sakin Ganga Tola Lodipur P.S. and P.O. Maner District Patna – (Claimant) 2. Dilip Kumar Son of Sri Jamuna Rai Resident of Maner Tola P.O. and P.S. Maner District Patna ---------------- (O.P. No. 2 ). 3. Lal Bahadur Prasad Son of Ram Prasad Rai Resident of Jangali Tola P.O. and P.S. – Maner District Patna. ----------- (O.P. No. 3 ). 4. Sudarshan Singh Son of Sri Baiju Ram Resident of Dost Nagar P.O. and P.S. Sherpur, District Patna -------------- (O.P. No. 4 ). 5. Ram Kumar Son of Nagina Rai Resident of Nayatola Bayarpur P.O. and P.S. Maner District – Patna -------------- (O.P. No. 5 ) ---------- Respondents ---------------------------------- 8 25/10/2011 The present appeal under Section 173 of the Motor Vehicles Act, 1988, (hereinafter referred to as the „M.V. Act‟), has been preferred against an order dated 20.01.2009 passed by the District Judge, Patna-cum-Motor Vehicles Claims Tribunal (hereinafter referred to as the „Claims Tribunal‟), in Claim Case No. 268 of 2007, whereby, the learned court below has allowed the petition filed under section 140 of the M.V. Act for grant of interim compensation in Claim Case No. 268 of 2007. By the said order the learned Claims Tribunal has directed the appellant/insurer of the offending vehicle i.e. Mahindra Jeep bearing Registration No. BR- 1AP-4170 to make payment of the interim compensation amount of Rs. 50,000/- to the claimant/respondent no. 1. 2. Short fact of the case is that on 05/03/2007 while son of the respondent no. 1 was traveling in a Mahindra Jeep bearing Registration No. BR-1AP-4170, the said jeep dashed with a 2 standing truck having Registration No. BR-2-6986. It is evident that the Mahindra Jeep had dashed the truck from back side while the truck was standing. In the said accident the son of the claimant / respondent no. 1 died, and thereafter, an F.I.R. vide Maner P.S. Case No. 54 of 2007, was lodged. After the death, claim petition was filed before the learned Claims Tribunal for compensation as prescribed under the provisions of the M.V. Act. In the said case a petition under section 140 of the M.V. Act was filed by the claimant for interim compensation. Before the court below, the owner of the offending Mahindra jeep as well as the insurer of the said jeep i.e. the appellant, entered their appearance and filed their respective written statements. The owner of the offending jeep stated in its written statement that the jeep was under insurance cover with the present appellant and he also filed documents regarding the insurance of the said jeep. The owner also filed copy of driving licence and it was stated that driver of the offending vehicle was having valid driving licence. After hearing the parties and considering the fact that it was a case for interim compensation, the learned Claims Tribunal by the impugned order has directed the appellant to make payment of interim compensation of Rs. 50,000/-. Aggrieved with the order dated 20/01/2009, the insurer / appellant has preferred the present appeal. The appeal was heard in “Admission Matter”. Earlier notices were issued and were validly served. However, the claimant i.e. the respondent no. 1 has not appeared. 3 3. I have heard Sri Ashok Priyadarshi, learned counsel for the appellant, Sri Helal Ahmad, learned counsel appearing on behalf of respondent no. 2 and Sri Dhananjay Mishra, learned counsel appearing on behalf of respondent no. 4 & 5. 4. Sri Ashok Priyadarshi, learned counsel for the appellant while questioning the impugned order has argued that it was a case of contributory liability since in the accident there was collusion in between Mahindra jeep, on which the deceased (son of the claimant) was traveling and a truck bearing Registration No. BR-2-6986, and as such, the appellant was only required to make payment of 50% of interim compensation. In support of his argument he has relied on (2007) 6 SCC 657 (Yallwwa (Smt) & Ors Vs National Insurance Co. Ltd. & Anr.). It was submitted that in case of collusion between two vehicles due to negligence of drivers of both the vehicles, the entire responsibility cannot be thrust on any one of the driver of the vehicle, and as such, insurers of both the vehicles are required to be directed for sharing even the interim compensation amount. In support of his argument he has also relied on 1997 (1) PLJR 270 (United India Insurance Company Ltd. Vs Shila Devi & Pradeep Kumar Lal). 5. In sum and substance it was submitted that it was a case of collusion between two vehicles, and as such, the learned Claims Tribunal while directing payment of interim compensation of Rs. 50,000/- only to the appellant has committed serious error, and as such, it requires interference. 4 6. Mr. Helal Ahmad, learned counsel appearing on behalf of respondent no. 2 has argued that since the vehicle was insured, it is the responsibility of the insurer to indemnify the owner and the learned Claims Tribunal has rightly directed the appellant to pay the compensation amount. 7. Besides hearing the parties, I have also perused the materials available on record. 8. From the impugned order it is evident that the offending vehicle i.e. the Mahindra jeep had dashed a standing truck from back side. Prima facie it is difficult at this stage to conclusively record a finding that it was a case of contributory negligence, rather it appears, that the driver of the offending jeep was negligent and rash due to which the jeep had dashed with a standing truck. The argument advanced by learned counsel for the appellant in the facts and circumstances of the present case has got no force. The reliance which has been made by learned counsel for the appellant on the case of Yallwwa (Supra) as well as United India Insurance Co. Ltd. (Supra) has got no relevance in the facts and circumstances of the present case. 9. In Yallwwa case (Supra), the question involved was as to whether against an order passed under Section 140 of the Motor Vehicle Act an appeal lies or not. Similarly in case of United India Insurance Co. Ltd. (Supra), fact was entirely different. In the said case, it was specific case of contributory liability of two vehicles. However, in the present case it is evident that the 5 offending Mahindra jeep had dashed a standing truck. Accordingly, the judgment referred by learned counsel for the appellant has got no relevance in the facts and circumstances of the present case. So far interim compensation is concerned, it is not at all required for the claimants to lead evidence for establishing claim for interim compensation particularly in view of section 140 (3) of the M.V. Act. For just decision in the matter it is necessary to quote the same which is as follows:- “In any claim for compensation under sub- section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.” 10. In view of statutory provisions as well as the facts of the present case, the court is of the opinion that the learned Claims Tribunal has rightly directed the insurer of the offending Mahindra jeep i.e. the appellant to make payment of interim compensation amount. The order was passed on 20/01/2009. It is true that under section 140 of the M.V. Act the total compensation amount i.e. Rs. 50,000/- is required to be paid, but since in the present case accident has taken place in 2007 and order was passed in the month of January 2009, thereafter matter remained pending for such a long time, therefore, while dismissing the present appeal it is desirable to direct the appellant to pay the interim compensation i.e. Rs. 50,000/- in terms of the order passed by the learned Claims Tribunal within a period of two months from the date of receipt / production of a copy 6 of this order. Since delay has occurred, the appellant is further directed to pay the aforesaid interim compensation i.e. Rs. 50,000/- along with simple interest at the rate of 06% per annum from the date of the impugned order i.e. from 20/01/2009 till the date of payment. 11. With above observations and directions, the appeal stands dismissed. 12. In view of dismissal of the appeal, the statutory amount deposited at the time of filing of this appeal is directed to be remitted back to the court below for its payment to the claimant. Praful ( Rakesh Kumar, J.)