IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.475 of 2003 VIJAY KUMAR son of Satya Narayan Sah, resident of Mohalla-Chaiehatta, Hajipur, P.S.-Hajipur, Town, district- Vaishali ……. ……. Appellant Versus 1.Mosmat Leela Devi wife of late Benisah 2.Sila Devi wife of Suresh Sah 3.Anshu Kumari daughter of Suresh Sah All resident of village-Kutubpur Mataluka, P.S.-Bidupur, District- Vaishali 4.Arun Kumar Ray son of Radhey Ray,106 B.T.Road, Kolkata 5.The Oriental Insurance Company Ltd. through Branch Manager, Ramashish Chowk, Hajipur, District- Vaishali. …….. ……. Respondents ----------- 12. 10.5.2011. Heard Mr. Mahendra Prasad Gupta, learned counsel for the appellant (owner of the offending vehicle), Mr. Barun Kumar Choudhary, learned counsel for respondent no.5/The Oriental Insurance Company Ltd. Vaishali at Hajipur and Mr. Satya Praksh Singh, learned counsel for respondent nos.1 to 3. The present appeal has been preferred under section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as „the M.V.Act‟) against the order dated 24.11.2003 passed by 4th Additional Sessions Judge-cum-Claim Tribunal, Vaishali at Hajipur in Claim Case No.11 of 2003, whereby the appellant was directed to make payment of ad interim amount of compensation of Rs.50,000/- to the claimants. Short fact of the case is that on 4.2.2003 while the bus bearing registration no.BR-31A/5295 was carrying passengers and moving on a public road, the appellant, being owner of the vehicle, 2 was sitting on the driver seat along with the driver and he was learning to drive the vehicle. In course of learning, son of the claimant-respondent no.1 was dashed by the bus, which is a public carrier, and in the said accident the son of respondent no.1 died. After the accident, a first information report vide Bidupur P.S. Case No.29 of 2003 was registered on 4.2.2003 for the offence under sections 304 and 279 of the Indian Penal Code on the basis of Fardbeyan of one co-passenger, who was sitting in the offending public carrier vehicle. Due to death in the accident, a claim case was filed on behalf of the claimants i.e. respondent nos.1 to 3 and a petition under section 140 of the M.V.Act was filed. The learned Claim Tribunal, after noticing the materials on record particularly the averments made in the first information report, came to the conclusion that it was a complete fault on the part of the owner. The learned Claim Tribunal also depricated the action of the appellant for learning a public carrier vehicle carrying passengers on the bus on a public road and after being prima facie satisfied that the appellant-owner had violated the terms and conditions of the insurance policy, passed the impugned order. It is not in dispute that the offending vehicle was insured by respondent no.5/the Oriental Insurance Company Limited, Vaishali at Hajipur. Mr. Mahendra Prasad Gupta, learned counsel for the appellant, while assailing the impugned order, has emphasized that in view of the M.V.Act even for payment of ad interim compensation, if the offending vehicle is insured then the insurer is 3 liable to make payment of amount of ad interim compensation. He has referred to number of judgments of this court in support of his argument. i.e. (i) 2006(1) PLJR 603 Shanti Devi Vs. Basmatti Devi and Ors., (ii) 2001(3) PLJR 592 (Mirtunajay Kumar Singh @ Mirtunjay Kr. Singh Vs. The Oriental Insurance Company Ltd. & Ors. (iii) 2001(4) PLJR 14 (Divisional Manager, New India Assurance Co. Ltd. Vs. Most. Sabila Khatoon & Ors.). Learned counsel has heavily relied on Shanti Devi‟s case (supra) and referred to paragraphs 7 and 8 of the said judgment which are as follows: “ 7. Now the question arises who amongst the owner and Insurance Company is liable to pay the interim compensation under section 140 of the M.V. Act. Exactly the same question came for consideration before a Divisional Bench of this Court in LPA No.1454 of 2000 which was filed against the order dated 22.8.2000 passed by a Bench of learned Single Judge in M.A. No.494/99 which was itself filed against the order of Tribunal directing Insurance Company to pay interim compensation where owner of the vehicle was directed to pay interim compensation on no fault basis after holding that Insurance Company is not liable to pay interim compensation under section 140 of the M.V.Act and it is owner alone who is liable to pay the same. The LPA was allowed and 4 the order passed by the learned Single Judge was set aside and order passed by the Tribunal was restored. I am quoting below the paragraph of the judgment which is relevant for the purpose of the present case: “12. No doubt, Section 140 provides that the interim compensation is to be paid by the owner but once an insurance policy in terms of Chapter XI is in force with regard to the motor vehicle covering liability against the third party risk then by virtue of definition of liability under section 145(c), the interim compensation is also included or covered by the said policy and the Insurance Company also becomes liable to pay interim compensation. If this view is taken, the social purpose for which the provisions of Section 140 was enacted will be frustrated. In many cases, there will be difficulty in passing the order of compensation against the driver or owner of the vehicle because they may not be in a position to pay the interim compensation. To obviate such situation and to provide speedy help to the needy claimants, the legislature appears to have also included „liability‟ under section 140 of the Act within the definition of a liability under section 5 145(c) of the Act. Thus, there is no difficulty in coming to the conclusion that once an insurance policy is in force with regard to use of motor vehicle at a public place covering liability against the third party risk then the insurer is also liable to pay the interim compensation even though he is not classified as one of the persons against whom an order can be passed under section 140 of the Act.” “8. The Division Bench thereafter referred a catena of decisions rendered by Hon‟ble Judges of the majority of the High Courts in the country in support of the aforesaid view and it also considered the judgments of Apex Court in the case of K. Nand Kumar vs. Managing Director, Thanthal Periyar Transport Corporation (1996)2 SCC 736 and National Insurance Company Vs. Jethu Ram, (1999)9 SCC 62. The Division Bench did not agree with the views taken by the Benches of learned Single Judges in the case of New India Assurance Company vs. Turki Hi alias Kui (1995 BBCJ 419) (:1997(1)PLJR 28, and national Insurance Company Ltd. vs. Smt. Neela Singh (1999(3) PLJR 489 and it distinguished the decisions of Division Bench of this Court in the 6 case of National Insurance Company vs. Lachhminia Devi, reported in 1987 B.L.T. 274 (:1988 PLJR 600). Finally the Division Bench observed as follows : “21. Thus, after considering the question involved in this appeal from different angles, I am of the considered view that the order under section 140 of the Act can be passed against the insurer also in view of the discussions made above. If ultimately it is found at the time of final determination of the question of compensation that the insurer is not liable to pay compensation, then the insurer is not loser or remediless as an order can be passed for reimbursement of the amount from the owner as held in the case of Jethu Ram (Supra).” On the aforesaid proposition, it has been argued that in any event it was the insurance company to make payment of ad interim compensation and not the owner. Mr. Barun Kumar Choudhary, learned counsel for respondent no.5/Oriental Insurance Company, has forcefully opposed the prayer of the appellant. He submits that the provisions contained in section 140 of the M.V.Act itself prescribes that in such a case ad interim compensation is to be paid by the owner of the vehicle. Mr. Choudhary has relied upon a judgment reported in 7 (2010)8 SCC 620 (Eshwarappa @ Maheshwarappa and another Vs. C.S.Gurushanthappa and another). He has specifically referred to paragraph 18 of the judgment. It would be appropriate to quote the same, which is as follows: “Paragraph 18: Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of the insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as “Act only insurance”. The provisions of Section 146 and 147 are meant to create the large pool of money for making payments of no- fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing incident is guilty of some flagrant violation of the law.” On the aforesaid ground, it has been submitted that the order impugned is just, having no error which requires no interference. Learned counsel for respondent nos.1 to 3 (claimants) has supported the argument of Mr. Mahendra Prasad Gupta, learned counsel for the appellant/owner of the vehicle. Besides hearing learned counsel for the parties, I have 8 also perused the materials available on the record. In the present case, for deciding the claim petition filed under section 140 of the M.V.Act, the learned Claim Tribunal has examined the first information report, which is the basis for initiation of the claim petition. Perusal of the first information report makes it clear that it was completely irresponsible and senseless approach of the appellant that, while public carrier was carrying passengers, he being owner was sitting with the driver of the vehicle and in course of learning the accident had occurred. I have also perused the first information report. After going through the first information report, the court is satisfied that the learned Claim Tribunal has rightly directed the appellant to pay ad interim amount of compensation to the claimants. So far as the judgments referred to by learned counsel for the appellant are concerned, the court is of the opinion that the judgments are to be looked into in view of the facts and circumstances of each case. In the present case facts are vividly clear for coming to the conclusion that it was a glaring example of violation of terms of agreement with the insurance company. The first information report is indicative of the fact. This proposition is corroborated from the law laid down by the Apex Court in Eshwarappa @ Maheshwarappa‟s case (supra). In paragraph 18 of the judgment, it was made clear that in case of flagrant violation of law by the owner of the vehicle in question, the owner of the vehicle could be held responsible for making payment of ad interim 9 compensation. In the aforesaid facts and circumstances of the case, the court is of the opinion that the impugned order does not require any interference. Accordingly, the appeal stands rejected. The statutory amount deposited, at the time of filing of the appeal, under section 173(1) of the M.V.Act is directed to be remitted back to the learned Claim Tribunal for its payment to the claimants. Md.S. (Rakesh Kumar,J.)