National Insurance Company Limited vs Abdul Rehman Lone And Others

National Insurance Company Limited â€" appellant herein, is aggrieved of and seeks setting-aside of Interim Award dated 24th April 2019, passed

by the Motor Accident Claims Tribunal, (Principal District & Sessions Judge) Baramulla (for short “Tribunalâ€) on an Application for grant of

interim relief titled Abdul Rehman Lone and others v. Fayaz Ahmad Peerzada and others, on the grounds enumerated therein.

I have gone through the file and considered the matter.

It is vehemently stated in the Appeal on hand that Tribunal has not dealt with application under Section 140 of Motor Vehicles Act in proper

perspective as the respondent no.6, who was driver of offending vehicle, was only 13 years old at the time of accident and, therefore, neither he was

entitled to drive the vehicle nor entitled to obtain driving licence under Motor Vehicles Act. It is further pleaded that respondent no.5 as owner of the

offending vehicles has committed breach of terms and conditions of insurance policy by allowing respondent no.6 to ply offending vehicle.

Given submissions made in the Appeal on hand, it may be mentioned here that it is a beaten law that at the time of granting compensation on the

principle of No-Fault Liability, the defence(s) available are not to be taken into consideration. It would be appropriate to reproduce Section 140 of the

Motor Vehicles Act, 19988 infra:

“140. Liability to pay compensation in certain cases on the principle of no fault. â€

(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the

owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of

such death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty

thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a

fixed sum of 2[twenty-five thousand rupees].

(3) 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.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of

whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or

permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 3[(5)

Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give

compensation for relief, he is also liable to pay compensation under any other law for the time being in force:

Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this

section or under section 163A.]â€​

Section 140 of the Act, thus, provides that while considering application for grant of interim compensation, the Tribunal has to take into

consideration contents contained in the claim petition, FIR, postmortem report, death/disability certificate and, thereafter, has to make an interim

award. At this stage, the Tribunal has not to consider defence(s) available to the insurer in terms of other provisions contained in the Act. My view is

fortified by the judgement rendered in the case of National Insurance Co. Ltd. v. Nasib Chand, 2011 (II) SLJ 623; relevant portion thereof is

reproduced below:

“3. The crux of the matter is whether the defence projected and taken by the appellant-insurer in terms of Section 149 of the Act can be pressed

into service at the time of determination of application under Section 140 of the Act or grant of interim award on no fault liability. The answer is in

negative for the following reasons.

Claims under Section 140 of the Act cannot be defeated on the ground that the owner has committed the breach or the insurer has a defence in terms

of Section 149 of the Act, which requires determination after leading evidence.

In terms of section 140, 141, 158 (6) and 166(4) read with the Rules (supra), the Claims Tribunal is required to satisfy itself while determining the

petition under section 140 of the Act in respect of the following points:

i. The accident has arisen out of the use of motor vehicle;

ii. The said accident resulted in death or permanent disablement;

iii. The claim is made against the owner and insurer of the motor vehicle involved in the accident.

The Claims Tribunal after examining the FIR and the disability certificate came to the conclusion that claimant-respondent no.1 has prima facie

established all the ingredients which are required for determination of the petition under section 140 of the Act on no fault liability. The appellant-

insurer has not denied the factum of insurance. Thus it is admitted that the vehicle was insured at the relevant point of time. The Tribunal has strictly

followed the procedure contained in sections 140 and 141 of the Act read with the Rules (supra).â€​

The Supreme Court in National Insurance Company v. Sinitha, AIR 2012 SC 797, has made the same views and observations as have been quoted

above. Even a Bench of this Court in Raina and others v. Kh. Habib-ullah Najar and others, 2005 (1) JKJ HC 645, has held that while granting interim

relief, the Tribunal has not to look into the defence available to the Insurance Company but on the basis of prima facie evidence available on the

record and no roving enquiry is required to be conducted while granting such relief.

When the instant case is analyzed in the backdrop of ratio emerging from the above discourse, impugned Interim Award need not be interfered with

and as a consequence whereof, Appeal is liable to be dismissed.

In the given circumstances, the Appeal is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

Nevertheless, respondents 1 to 4/claimants shall file an Undertaking before the Tribunal that in the event they fail, they will reimburse the interim

compensation.

Copy of this judgement be sent down.