NEW INDIA ASSURANCE CO LTD Vs. FIDA HUSSAIN

JUDGEMENT

(1.) A short but significant question of law has arisen for decision in this appeal. The question is whether without filing a petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act'), application for 'no fault' compensation under Section 140 of the Act is maintainable.

(2.) The short facts of the case are that one Chhotu Hussain died in a motor accident on 22.10.1998 near Kachahari Petrol Pump on G.T. Road at Sasaram. His father Fida Hussain, respondent No. 1 herein, lodged a criminal case, Sasaram P.S. Case No. 548 of 1998 under Sections 279 and 304-A, Indian Penal Code. He also filed an application under Section 140 of the Act for fixed compensation of Rs. 50,000 on the principle of 'no fault liability' which was registered as Motor Vehicles Case No. 116 of 1998 before the Motor Accidents Claims Tribunal, Rohtas at Sasaram. On 10.2.1999 order in terms of Section 140 of the Act was passed. As the vehicle in question, a truck bearing registration No. UP 70-D 9786, was insured with the appellant New India Assurance Co. Ltd., it was directed to pay Rs. 50,000 as interim compensation within 60 days of the order with interest at the rate of 10 per cent per annum from the date of the order. The appellant preferred Miscellaneous Appeal No. 288 of 1999 in this court objecting to the maintainability of the claim case on the ground that compensation under Section 140 of the Act is payable only in a claim case under Section 166 of the Act, and where no such case is filed the Tribunal has no jurisdiction to pass any such order. In other words, a direct application under Section 140 is not maintainable. The learned single Judge, before whom the appeal came up for hearing, dismissed the appeal observing that a Division Bench of this court in the case of Kanhai Rai v. Dharampal 2002 ACJ 260 (Patna), has held that where the vehicle is insured on the date of accident, the insurer is liable to pay the interim compensation even though the insurer is not specified as the person against whom any order can be passed under Section 140. If ultimately it is found at the time of final determination that the insurer is not liable to pay compensation, order can be passed for reimbursement of the amount from the owner. As regards the submission that the application under Section 140 was not maintainable, the learned Judge observed that Section 140 refers to compensation on the principle of 'no fault', whereas under Section 166 application for compensation can be made with respect to an accident of the nature specified in Sub-section (1) of Section 165. Therefore, non-filing of claim petition under Section 166 does not exempt the owner or the insurance company from the liability to pay compensation on the principle of 'no fault' under Section 140.

(3.) Mr. Ashok Priyadarshi, the learned Counsel for the appellant submitted that in at least two cases, viz., Oriental Insurance Co. Ltd. v. Chulchul Devi 1999 (1) PLJR 747 and Divisional Manager, Oriental Insurance Co. Ltd. v. Gulzari Kuer 1999 (1) PLJR 872, this court held that a direct application under Section 140 of the Act is not maintainable and, therefore, it was not open to the learned single Judge to take a contrary view. Having noticed one of those cases in the order, the learned Judge, if he wished to take a different view, should have referred the case to a larger Bench. Counsel pointed out that Miscellaneous Appeal No. 232 of 1998 referred to the Division Bench on the same point has been admitted for regular hearing. The Counsel placed reliance, besides the above-mentioned two cases on Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 ACJ 428 (SC).