IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.12 of 2010 UNITED INDIA INSURANCE COMPANY LTD. through Sri Rajesh Kumar, Manager, its Patna Regional Office and constituted attorney of United India Insurance Company, which is at present situated at 3rd Floor, Chanakya Commercial Complex, R-Block, Patna – 1 (Opposite Party No. 2 in the Claim Case) ---------------- Appellant. Versus 1. MOST. DHAULI DEVI, wife of Late Sogarath Sahni, (Wife of the deceased) 2. Murti Devi, wife of Shri Charitar Sahni, (Mother of deceased) Both resident of village – Bishanpur, P.O. – Narsara, District – Darbhanga. (Claimants in the Claim Case). ------------- Respoondents 1st Set. 3. Smt. Ranjana Poddar, wife of Shri Sunil Anand Resident of Laxmipur, Ward No. 14, P.O. 7 P.S.- Rosera, District – Samastipur. (Owner of Jeep Taxi No. BR – 33A – 8201) (Opp. Party No. 1 in the Claim Case). ----------------- Respondents 2nd Set. ------- For the appellant : Shri Rana Randhir Singh, Adv. ****** 03. 09.07.2010 Heard learned counsel for the appellant. This appeal has been preferred against order dated 15.09.2009 passed by learned 1st Additional District Judge- cum-Motor Accidents Claim Tribunal, Darbhanga, in claim case no. 52/2003. The impugned order appears very cryptic. The claim tribunal must have given some more details about the nature of claim, details of insurance etc. but, there is nothing of the kind as appears from the impugned order stated below: “Today is the date fixed for order. In the petition filed by the claimant Dhauli Devi u/s 140 of the M.V. Act for compensation, who is said to be the wife of late Sogarath Sahni. The claim is of Rs. 50,000/-. The - 2 - Insurance Company and the Vehicle owner appeared and have filed their show cause. I perused the case record. All the papers appear to be genuine and the demand of interim compensation is legal. The insurance company is directed to pay Rs. 50,000/- to the petitioners.” In the normal course, the appeal could have been allowed and matter could have been remitted for fresh order but, taking into consideration the spirit of beneficial legislation and also admitted position as submitted by learned counsel for the appellant and mentioned in memo of appeal that ill fated jeep was under valid insurance but, there is only objection of the appellant that deceased was employed as a Khalashi in the vehicle but to cover his risk, no premium was paid to the insurance as such in spite of validity of the insurance for all other purposes appellant is not liable to pay compensation to the claimants against the death of deceased Khalashi. It also appears from impugned order that insurance had already entered into appearance earlier and filed his objection by way of written statement, but further reference is lacking. However, taking into consideration that the original claim objection has been filed under section 166 of the Motor Vehicle Act, wherein on prayer under section 140 of the Act, the impugned order was passed, matter is pending before the Claim Tribunal for further adjudication, as regard to rival contentions, extent of liability and quantum of compensation in face of the - 3 - vehicle in question being insured by the appellant and dispute by appellant is as regard to application of provision as laid down under Section 147 of the M.V. Act, coverage of risk of a particular person (employed as Khalashi) at this stage in particular fact and circumstance application of the provisions as contemplated under section 149 of the Act shall be more appropriate. The relevant provision of law referred to above read a such: “ Section 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks - (1) * * * * (2) * * * * (3) * * * * “ (4). Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue - 4 - only of this sub-section shall be recoverable by the insurer from that person. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.” (6) * * * * (7) * * * *” Accordingly, the appellant is hereby directed to make payment of ad interim compensation as awarded by the court below to the claimants with a right to recover from the owner in case on adjudication of the controversy, the court below arrives at the conclusion that the terms and conditions of the policy does not cover risk of the deceased Khalashi and no premium is paid for that as the case of the appellant, appropriate order may be passed in view of Section 147(2) of the Act which reads as such: 147. Requirement of policies and limits of liability : - (1) * * * * (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any - 5 - accident, up to the following limits, namely: - (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand; Provided that any policy of insurance issued with any liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) * * * * (4) * * * * (5) * * * * It is further made clear that law is clear on the points that unless it is established that insurer is liable to pay the claim against the deceased in motor accident in terms and conditions of the policy. Normally the insurer cannot be compelled to make payment, however in case of necessity, shelter of provisions as contemplated under section 149 of the Act can be taken in that case, right of recovery of the insurer from the owner of the vehicle in question is always available to the insurer. With the above observation and direction, this appeal is hereby dismissed at the admission stage itself. Simultaneously, the court below is directed to proceed expeditiously even at the risk of day to day basis and preferably conclude the inquiry within four months of receipt of the copy of this order or - 6 - communication by any other means. The statutory amount of Rs. 25,000/- deposited in this appeal be transmitted to the court below by way of a demand draft in the name of award holder towards payment of compensation. Rajeev/ (Akhilesh Chandra, J.)