DIVISIONAL MANAGER NATIONAL Vs. SAYAL SUNA

JUDGEMENT

(1.) This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (in short, 'the Act') by the National Insurance Co. Ltd., Rourkela (hereinafter referred to as 'the insurer') against the order dated 27.9.1995 of the learned Second Motor Accidents Claims Tribunal, Sarnbalpur (hereinafter referred to as 'the Tribunal') whereby prayer of the respondent Nos. 1 and 2 for grant of interim award under no fault liability was allowed and the insurer was directed to pay the sum of Rs. 25,000 within two months from the date of passing of the impugned award.

(2.) THE admitted factual position emerging from the record is that the deceased Suryakanta Suna, son of the respondent Nos. 1 and 2, died in a motor accident on 10.1.1993 at about 9 p.m. The respondents approached the Tribunal claiming compensation and they also filed a separate petition under Section 140 of the Act for interim compensation of Rs. 25,000 under no fault liability. The insurer filed objection to such claim, paras 6 and 7 whereof are extracted hereunder: (6) That the O.P. No. 2 admits the accident alleged to have taken place on 10.8.1993 as stated in para 5 of the claim petition but denies the nature of injury sustained as stated in para 8 of the petition. The claimant is bound to prove not only the accident and the injuries as alleged but also the allegations that it was caused by the driver of the alleged vehicle for his rash and negligent driving. (7) That the O.P. No. 2 admits that the vehicle bus bearing No. ORO 3504 was covered under a policy or insurance at the material time. As per the investigation conducted by this party through an independent investigator, the accident took place while being used in contravention for the purpose permitted by registering authority and violating the route permit granted. The petitioner is to prove the same that the vehicle was not used for the purpose other than it should have been used legitimately. xxx xxx xxx

(3.) THE learned Counsel for the insurer contended that there was no enquiry at all and the learned Tribunal in a hot haste passed the impugned order directing the insurer to pay interim compensation under no fault liability as envisaged under Section 140 of the Act. In course of argument, he placed reliance on two decisions of this Court in Divisional Manager, United India Insurance Co. Ltd. v. Moyana Mazumdar, 1995 ACJ 467 (Orissa) and United India Insurance Co. Ltd. v. Kamalalochan Kamalo, 1996 ACJ 302 (Orissa). - - - - In Moyana Mazumdar (supra), the court observed that the only ingredients to be established by the claimants to attract the provision of Section 140 of the Act are that an accident had occurred by a vehicle and the death was resultant of the accident and so far as the insurer is concerned, it was observed that in order to fasten the liability on the insurer, the Tribunal is to find out as to whether the insurer is liable to indemnify the owner under Section 140 of the Act. In Kamalalochan Kamalo (supra), the question for consideration was whether the insurer will be permitted to plead and establish in a summary manner in a proceeding under Section 140 of the Act that the risk was neither covered nor was required to be covered under Section 95. The court on consideration of the relevant provisions of the Act answered that before fastening the liability on the insurer some amount of inquiry is necessary. In the present case, it is not disputed by the insurer that the risk was covered under the insurance policy. The only contention, however, was that the vehicle which had caused the accident was plying on the route having no route permit. In my opinion, it is not a question to be considered in a summary proceeding under Section 140 of the Act. The objections taken by the insurer, as quoted above, are vague and general in nature and no specific stand was taken that the insurer was not liable under no fault liability.