P.K. Mohanty, J.
1. This is an appeal by the insurer National Insurance Co. Ltd. against the order of the Motor Accidents Claims Tribunal, Phulbani, passed under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') holding the appellant liable to pay the compensation towards no fault liability.
2. The brief facts of the case are that on 27.2.1993 at about 4.30 p.m., the deceased was travelling in a mini truck bearing registration No. OR-05A-3927 as a passenger along with others. The mini truck met with an accident as a result of which two occupants received grievous injuries, 18 persons received simple injuries and two including the deceased died at the District Headquarters Hospital, Phulbani. Bilasini Naik, widow of deceased Adrias Naik, who succumbed to the injuries, filed an application under Section 140 of the Act in the court of the District Judge-cum-Motor Accidents Claims Tribunal, Phulbani.
3. On notice being issued, the owner of the vehicle appeared, but did not contest the case. However, the appellant insurer filed a counter specifically denying its liability, mainly on the ground that the mini truck, a goods vehicle having carried passengers large in number and the driver having no driving licence, it is not liable to pay the compensation, in covering the liability of the owner under Section 140 of the Motor Vehicles Act.
4. The Tribunal directed the appellant to pay a compensation of Rs. 50,000 under no fault liability and hence the appeal.
5. The main thrust of argument of the learned Counsel for the appellant is that in view of the provisions of Sub-section (3) of Section 140 of the Act, corresponding to Section 92-A of 1939 Act, in absence of any pleading or proof of wrongful act, negligence and default of the owner of the vehicle involved in the accident or of any other person the order under Section 140 of the Act is not permissible. The principle of no fault liability holds the owner of the vehicle liable for compensation even when the accident is not due to the fault of the owner of the vehicle and even if the accident has taken place due to the fault of the victim. Under Section 149 of the Act, the insurance company is required to satisfy a judgment passed against the insured in respect of the liability which is covered by a policy as required under Section 146 of the Act. It is submitted that Section 147 of the Act provides for insurance policy and also the terms of such policy which is a contract and as such, the liability of the insurer is to be determined from the stipulation of the contract found from the insurance policy and as such, under the provision of Section 140 of the Act, if the compensation is to be paid by the owner and if the owner takes shelter under the liability of the insurer, then the liability of the insurer is subject to the terms of the insurance policy only.
6. Mr. Sanjeev Udgata, learned Counsel for respondent No. 2, however, challenges the maintainability of the appeal against an order under Section 140 of the Act by the insurer. It is his contention that the order under Section 140 of the Act being not an award, no appeal can lie against the same. It is further submitted that an enquiry under Section 140 of the Act is extremely limited inasmuch as the insurance company is liable to indemnify the owner in any event. The insurance company cannot disclaim the liability in respect of a particular class of persons or particular kind of vehicles under Section 147 of the Act. The learned Counsel for the patties have referred to several decisions which shall be considered at the appropriate time.
7. The main question that calls for determination is, as to whether the appeal against an order under Section 140 of the Act is maintainable at the instance of the insurer and as to whether the liability of the owner of a goods vehicle causing the accident and resulting in death of a person carried as a passenger on a claim under no fault liability under Section 140 of the Act is covered by the insurance policy
8. The question whether an appeal lies against the order passed under Section 140 of the Act is no more res integra. This court in Divisional Manager, United India Insurance Co. Ltd. v, Somani Ghosh, 1995 ACJ 696 (Orissa), held that the order passed under Section 140 of the Act is an award and, therefore, an appeal is maintainable under Section 173 of the Act, In that view of the matter, it has to be held, an order under Section 140 of the Act is an interim award and as such, in view of the provision of Section 173 of the Act, an appeal is maintainable.
9. Coming to the next submission of the learned Counsel, as to whether in view of the fact that the deceased was a passenger in a goods vehicle, the insurer can be held liable to cover the liability of the owner under Section 140 of the Act for an accident which occurred prior to amendment of Section 147 of the Act, it is to be noted that this Court in Divisional Manager, Oriental Insurance Co. Ltd. v. Jasoda Mohanta 1997 ACJ 284 (Orissa), while interpreting the pre-amended provision of Section 147(1)(b)(i) of the Act has taken the view that the words 'any person' used in Section 147(1)(b)(i) of the Act include persons carried by even a goods vehicle and are not confined to third party only and as such the insurance company cannot escape its statutory liability. It is held that the words 'any person' used in the unamended section as it stood prior to the amendment by Motor Vehicles (Amendment) Act, 1994 cannot be given a restricted meaning and kept confined to third party only. It is to be noted that the 1994 Amendment has made the provision explicit which was implicit in the pre-amended provision of the section. In that view of the matter, the liability of the insurance company for covering the liability of the insured to pay the compensation under Section 140 of the Act towards no fault liability cannot be disputed.
10. Coming to the next submission of the learned Counsel that the driver of the offending vehicle having been prosecuted for driving the vehicle without a licence, the insurer is not liable to cover the liability of the owner. It is to be noted that in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC) and Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), the Apex Court held that it is only when the insured himself places the vehicle in charge of a person, who does not hold a driving licence, that it can be said that he is guilty of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of the promise. A Division Bench of Bombay High Court in Pandurang Narayandas Sarada v. Subhash Gopal Changale 1989 ACJ 879 (Bombay), relying on the aforesaid decision of the Apex Court has taken the view that the insurance company will be liable to indemnify the owner so far as compensation under Section 92-A of the Motor Vehicles Act, 1939 is concerned. The aforesaid view was expressed on the principle that under the law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of the provisions of Sections 94 and 95 of the Act, but the company shall be liable to indemnify the owner so far as compensation payable under Section 92-A of the 1939 Act is concerned.
Section 140(3) of the Motor Vehicles Act, 1988 reads thus:
(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.
Section 140, except Sub-section (5) of the Motor Vehicles Act, 1988 is pari materia with the provisions of Section 92-A of the Motor Vehicles Act, 1939. The violation of any of the conditions or terms of the insurance policy by the owner is of no consequence so far as payment of no fault liability under Section 140 of the Act by the insurer is concerned. The appellant insurance company having not brought on record any material to show that the driver of the offending vehicle had no driving licence except saying that the driver was being prosecuted for driving a vehicle without a valid licence, the contention that there being violation of the condition in the insurance policy, the insurer is not liable for the compensation, cannot be accepted.
11. In the result, all the contentions raised on behalf of the appellant having failed, the appeal is devoid of merit and thus dismissed. But there shall be no order as to cost in the facts and circumstances of the case.