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Judgment
Ravi R. Tripathi, J.—Heard learned advocate Mr. Shalin N. Mehta for the appellant- Insurance Company. In this First Appeal order below
Exhibit 5 in Motor Accident Claim Petition No. 169 of 2009 dated 7th May 2010 passed by the Motor Accident Claims Tribunal (Aux.),
Dhrangadhra is under challenge.
The facts giving rise to the claim petition are such that on 6th August 2009, the accident in question had taken place involving Bajaj Motor Cycle
bearing registration No. GJ-6-C-E-780. It was alleged that due to rash and negligent driving by the driver of the alleged vehicles, the accident took
place on 06.08.2009. The Claim Petition filed by the claimant is pending before the Motor Accident Claims Tribunal, Ahmedabad. During the
pendency of the said claim petition, exh. 5- application was filed by the claimant claiming compensation of Rs. 50,000/- on the basis of ''No Fault
Liability'' u/s 140 of the Motor Vehicles Act.
The appellant-Insurance Company has contended before the Tribunal that the deceased was a pillion rider on the insured vehicle, who cannot be
termed as a ''third party''; thus, he was not entitled to compensation. The appellant-Insurance Company relied on a decision of the Hon''ble the
Apex Court in the matter of Smt. Yallwwa and Others Vs. National Insurance Co. Ltd. and Another,
The Tribunal has not examined the objections raised by Insurance Company and held that under the provisions of Section 140 of the M.V. Act,
negligence of the driver of the vehicle in question is not to be considered as this liability is known as ''no fault liability'', and held that the Insurance
Company is liable to pay compensation to the claimant.
Learned advocate for the appellant-Insurance Company submitted that recently Apex Court has pronounced that even in application u/s 140 of
the M.V. Act also, if objection available u/s 149(2) is raised by Insurance Company, then Tribunal will have to decide the same as decided in the
case of Smt. Yallwwa and Others Vs. National Insurance Co. Ltd. and Another, The Honourable the Apex Court has held that even when
objections are raised by the Insurance Company with regard to its liability, the Tribunal is required to render a decision on such issue, which would
attain finality and thus, same would be an award within the meaning of Section 173 of the M.V. Act.
Learned advocate for appellant - Insurance Company submitted that Tribunal has not examined this defence and has not decided it, though it was
specifically raised by Insurance Company before Tribunal.
The Court considered the submissions made by learned advocate for appellant - Insurance Company and also perused award passed by
Tribunal under Sec. 140 of the Motor Vehicles Act. The Tribunal has observed that such defence is not available to Insurance Company in
proceedings under Sec. 140 of Motor Vehicles Act. Looking to the recent decision of the Honourable the Apex Court such defence is available to
Insurance Company even in proceeding u/s 140 of the Motor Vehicles Act. The main applications filed by claimants u/s 166 of Motor Vehicles
Act are yet pending.
Learned advocate for appellant-Insurance Company submitted that the 50% of the awarded amount is already deposited before Claims Tribunal.
Therefore, in the opinion of this Court, this appeal can be disposed of with a direction to the appellant - Insurance Company to deposit remaining
50% (fifty percent) amount i.e. Rs. 25,000/- (Rupees twenty five thousand only) together with cost and interest and out of that, 30% amount be
paid to claimants by A/c. Payee cheque and rest of the amount be invested in any Nationalized Bank, initially for a period of three years with
periodical renewals till main petition filed under Sec. 166 by the claimant is decided by the Tribunal with cumulative interest, to serve the interest of
justice. Order accordingly.
The Claims Tribunal is directed to pay 30% amount to respondent claimant by A/c. payee cheque as directed hereinabove on proper
verification. The FDR to remain with Nazir Department of Tribunal till aforesaid application is decided by Tribunal. This amount is subject to final
out come of main petition
With the aforesaid directions, present appeal is disposed of without expressing any opinion on merits.