UNITED INDIA INSURANCE CO LTD Vs. KALITARA SARKAR

JUDGEMENT

(1.) THE fate of these two appeals largely depend on the question as to whether an order directing payment of compensation, under Section 140 of the Motor Vehicles Act, 1988 (in short 'the MV Act'), which is popularly known as 'no Fault Liability' amount, is appellate under Section 173 of the Act of 1988. As both these appeals have arisen out of the same accident and raised essentially identical questions of law, both these appeals have been heard together and are being disposed of by this common judgment and order. The material facts and various stages, which have led to the present appeals, may, in brief, be set out as follows :

(2.) I have heard Mr. A. Phukan, learned counsel for the insurer-appellant, and Mr. C. Choudhury, learned counsel, appearing on behalf of the claimant-respondent. None has appeared on behalf of the owner respondent. I have also heard Mr. B. C. Das, learned Senior counsel, as Amicus Curiae.

(3.) APPEARING on behalf of the appellant, Mr. Phukan has submitted that in the present case, the appellant, as insurer, had insured, on the request of the Director of Tourism, Govt. of Assam, their Vehicle No. AMY 3860 (Swaraj Majda), and this policy commenced, on 31. 03. 1997, for a period of one year. However, after about 10 months from the date, when the Vehicle No. AMY 3860 stood insured, a letter, dated 12. 02. 1998, was received by the insurer from the Director of Tourism, Govt. of Assam, informing the insurer that the vehicle No. AMY 3860, which had been given the insurance coverage, was a condemned Vehicle and that the insurance coverage should not have been in respect of the Vehicle No. AMY 3860, but in respect of vehicle No. AMZ 6850, which is in a running condition. In good faith, submits Mr. Phukan, the insurer issued a letter to the effect that the insurance coverage, which was earlier in respect of the Vehicle No. AMY 3860, should be treated as insurance coverage for Vehicle No. AMZ 6850 and not AMY 3860. Subsequent inquiry has, however, revealed, points out Mr. Phukan, that it had been falsely stated by the Director, Tourism, in its letter, dated 12. 02. 1998, aforementioned, that their Vehicle No. AMY 3860 was a condemned vehicle, for, the District Transport Officer has already given a certificate to the effect that the vehicle No. AMY 3860 had not been condemned. It is, thus, clear, contends Mr. Phukan, that after the Vehicle No. AMZ 6850 committed the said accident, on 28. 01. 1998, the owner of the said vehicle got the insurance coverage transferred by falsely stating that the vehicle No. AMY 3860 was a condemned vehicle and that the insurance coverage should have been in respect of vehicle No. AMZ 6850 and not AMY 3860. It is, thus, transparent, further contends Mr. Phukan, that it was by playing fraud that the Director of Tourism, Govt. of Assam, got the insurance coverage in respect of the offending vehicle, namely, AMZ 6850, transferred. When these facts were pointed out to the learned Tribunal, the learned Tribunal did not, submits Mr. Phukan, modify its earlier orders, whereby the insurer was directed to pay 'no Fault Liability' amount of Rs. 50,000/- in each of the said two claim cases to the claimants concerned.