1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 641 OF 2009 Suresh S/o Basappa Pasare - - Applicant Versus 1. Rajabai W/o Jyotiba Jamge, and others - - Respondents Shri V. V. Solshe, Advocate h/f Shri Vivek C. Solshe, Advocate for the applicant. Shri S. L. Kulkarni, Advocate for the respondent No. 5. WITH FIRST APPEAL NO. 457 OF 2009 Suresh S/o Basappa Pasare - - Applicant Versus 1. Sudhakar S/o Baburao Patil, and others - - Respondents Shri V. V. Solshe, Advocate h/f Shri Vivek C. Solshe, Advocate for the applicant. Shri S. L. Kulkarni, Advocate for the respondent No. 5. 2 WITH FIRST APPEAL NO. 278 OF 2009 Suresh S/o Basappa Pasare - - Applicant Versus 1. Sudhakar S/o Baburao Patil, and others - - Respondents Shri V. V. Solshe, Advocate h/f Shri Vivek C. Solshe, Advocate for the applicant. Shri S. L. Kulkarni, Advocate for the respondent No. 5. CORAM : K. U. CHANDIWAL, J. DATE : 16TH JUNE, 2009. PER COURT : 1. Heard learned counsel for the appellant/owner of the vehicle. Mr. Ghute counsel for the claimant absent. Mr. Kulkarni for the insurance company. Appeal is finally heard at admission stage. 2. The original respondent No. 1/owner of the vehicle/appellant herein feels aggrieved by the orders of learned Member M. A. C. T. at Omerga, deciding the petitions under Section 140 of Motor Vehicles Act exonerating the insurance company from meeting the liability. The 3 counsel for the appellant would argue, the learned Member erred in passing the orders without affording any hearing to the appellant/the owner of the vehicle. It was not the stage to consider the defence as portrayed by the insurance company that there was breach of terms of policy. The counsel further submits, the report to police could not have been acted upon by the learned Judge as the claimants were not conversant with Telagu language. 3. It is a matter of record that in an accident while the deceased was travelling in jeep No. MH-25/A-1167, met with an accident since the driver of the jeep lost control. It was not the deceased alone who was a passenger in the vehicle, but, there were three vehicles engaged by a group of several persons moving for pilgrimage. 4. The contention of the counsel for the appellant that the matter was initially filed at Osmanabad and it was not within the reach and knowledge of the respondent (appellant herein) that when it was transfered to Omerga. is difficult to be acceded as the record, according to appellant himself at page No. 3 and ground No. C illustrates that the matter was transfered to Osmanabad from Omerga and it was heard by in- charge Judge. Be as it may, since there is an affidavit of the advocate for the appellant, there should not be any controversy on this point. Now in the situation, the fact remains whether the appellant can be allowed to attribute miscarriage of justice, when the order under challenge under 4 Section 140 of Motor Vehicles Act came to be passed by the learned Judge purportedly in the absence of the appellant, my answer to the same would be in the negative for the following reasons. 5. It was the insurance company who by its pleading at Exh. 16 based on the documents of the claimants pointed that the persons who travelled in the jeep involved in the accident were passengers for a pilgrimage and naturally were unauthorized travellers. It pleaded breach of terms of policy as the jeep was provided on hire. 6. Learned Member based on the judgment in the matter of Smt. Yellwwa and others Vs. National Insurance Co. Ltd. and another arising out of S. L. P. (Civil) 17016/2006 decided on 16.05.2007, found that the insurance company was entitled to raise objections about the maintainability of petition under Section 140 against it or its liability to indemnify, even under the petition for no fault liability. The Hon'ble Lordships of Apex Court have observed that when the objections are raised by the insurance company in regard to its liability, the Tribunal is required to render a decision upon a judgment which could attend finality. Thus the insurance company was treated having right to address the Court challenging the maintainability of petition under Section 140 of Motor Vehicles Act fixing its liability. It was in this scenario, the learned Judge by taking recourse to the contents in the written statement coupled with 5 the primary reports of police, found that the insurance company could not be saddled with the responsibility of meeting the claim under Section 140 of Motor Vehicles Act. 7. The order under challenge, was dealing with specific position of Law, which even otherwise does not entertain to hear the appellant herein, though the appellant feels that he should have been given an opportunity. The order itself directs the appellant to pay the amount, however validity of the order, and liability of the appellant, can be finally decided when main claim petition is adjudicated upon. The observations of the learned Judge were certainly in terms of provisions of Section 147 (ii) conferring in tune with the judgment of Hon'ble Apex Court in the matter of Smt. Yellwwa and others Vs. National Insurance Co. Ltd. and another. No more assistance could have been provided to the appellant even if he was required to be heard in the matter of deciding application under Section 140 of Motor Vehicles Act. 8. In the situation, I do not find that there is any explicit omission on the part of the learned Judge in passing order dated 05.03.2008 exonerating the insurance company from statutory compensation of Rs. 50,000/- in the respective petitions. 9. The appeal sans merit. It is dismissed with a clarification that all 6 defences raised are open to the appellant before the learned Judge seized with the matter. [ K. U. CHANDIWAL ] JUDGE bsb/June 09/FA 641.09