Judgment:
Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.
2. This writ petition takes exception to the order dated 27th August, 2010 below Exhibit-5 in W.C.A. No.4 of 2009 passed by the Civil Judge, Senior Division, Nandurbar.
3. The respondents herein, filed Workmen's Compensation Application No.04 of 2009 before the Court of the Civil Judge, Senior Division, Nandurbar alleging that, they are legal heirs of deceased who was working on the Tata Safar Car owned by the petitioner. The deceased was driving the vehicle when the accident took place as the steering rod was broken. The deceased sustained injuries and succumbed to the injuries. The total claim was of Rs. 3,68,340/-. The respondents also filed application below Exhibit-5 under Section 143 of the Motor Vehicles Act claiming Rs.50,000/- under No Fault Liability.
4. The petitioner herein, filed written statement as well as say to Exhibit-5. The petitioner denied the case of the respondents. The relation of employee and employer between the petitioner and deceased was also denied.
5. The learned Civil Judge, Senior Division, Nandurbar allowed the application Exhibit5 observing that, the deceased Shaikh Rashid died in the accident involving motor vehicle.
6. The learned Counsel appearing for the petitioner submits that, there is no power vested with the Commissioner to pass an interim order directing the opponents in claim petition to pay interim or ad-hoc compensation under section 143 of the Motor Vehicles Act. It is submitted that, entertaining such prayer for interim compensation will come into picture only if the claim petition is filed under Section 140 of the Motor Vehicles Act. The learned Counsel invited my attention to the pleadings in the petition, grounds taken therein and reported judgment of this Court in the case of New India Assurance Co. Ltd. vs. Nirmalabai Rajaram Gosavi and others (2009 (1) Bom.C.R. 305) and in particular paragraphs-7 and 8 thereof.
7. Though notices were issued to the respondents, they did not cause appearance and therefore, by order dated 26th April, 2013, the matter was referred to the High Court Legal Services Sub Committee, Aurangabad and accordingly, Advocate Mr. B.A. Dhengale was appointed to represent the cause of the respondents. Advocate Mr. B.A. Dhengale advanced his arguments across the Bar and placed on record the written notes of arguments. Relying on the written notes of arguments, the learned Counsel appearing for the respondents submits that, the writ petition filed by the petitioner is not maintainable before this Court, invoking the powers under Article 226 and 227 of the Constitution of India, as the order under challenge is interlocutory in nature which is passed in Workmen's Compensation proceedings on Exhibit-5 by the learned Civil Judge, Senior Division, Nandurbar. He further submits that, there is no provision for granting interim compensation, however, the learned Commissioner/Civil Court is having inherent power under section 151 of the Code of Civil Procedure when the statue is silent about the particular remedy, as such, the learned trial Court has rightly exercised his power in order to render the justice to the helpless and poor dependents of the deceased, who died in the accident.
8. The learned Counsel appearing for the respondents further submits that, the amount which has been granted by the Commissioner by way of interim order is very small amount and same can be deducted at the time of final determination of claim amount in the proceedings, therefore, it is not that much harmful to the employer when the servant died in the accident while in service. It is further submitted that, the said amount will certainly helpful to the dependents of the deceased, because as on today the dependents of the deceased are facing starvation. It is further submitted that, the trial Court having satisfied that, there is prima facie evidence of F.I.R. and statement of some of the persons which clearly speaks that, the deceased was working as a driver with the petitioner, as such, the Commissioner has rightly granted the amount of No Fault Liability in order to save the dependents from the starvation. It is further submitted that, the amount which has been granted by the Commissioner is not the final amount of compensation but it is small amount which has been granted for the welfare of the minors and old aged parents of the deceased, as such, that cannot be taken away from them. Therefore, the learned Counsel appearing for the petitioner submits that, the writ petition deserves to be rejected.
9. I have heard the learned Counsel appearing for the parties at length. With their able assistance, perused the entire documents placed on record and also the written notes of arguments filed by the appointed Advocate for the respondents and also judgment of this Court in the case of New India Assurance Co. Ltd. (supra).
10. Upon perusal of the impugned order, it appears that, the trial Court by prima facie observations in paragraph-4 held that, the jeep of the respondent i.e. petitioner herein, was involved in the accident and Shaikh Rashid has died in that accident and therefore, in paragraph-5 held that, the applicants are entitled to get No Fault Liability amount of Rs.50,000/- from the respondent i.e. petitioner herein. Accordingly, the petitioner herein, was directed to pay Rs.50,000/- (Rs. Fifty Thousand only) to the applicants towards an amount of No Fault Liability under section 143 of the Motor Vehicles Act, 1988 within one month from 27th August, 2010, failing which the said amount shall carry an interest at the rate of Rs. 12% per annum. The said order is under challenge in this writ petition.
11. This Court in the case of New India Assurance Co. Ltd. (supra) has considered the provisions of Motor Vehicles Act, 1988 and in particular Sections 140 and 143 thereof, and in paragraphs-7 and 8 held thus;
"7. I have carefully considered the submissions. The title of the application made by the 1st to 4th respondents on which the impugned order has been passed indicates that the said respondents purported to invoke 'no fault liability". If section 140 of the said Act of 1988 r.w. section 143 thereof is perused, the provisions of section 140 could have been read in the said Act of 1923 provided a claim for compensation was made under the said Act of 1923 in respect of death or permanent disablement of any person resulting from an accident involving the use of a motor vehicle which is referred to in sub-section (1) of section 140 of the said Act of 1988. Going by the case pleaded by the claimants, obviously sub-section (1) of section 140 of the said Act of 1988 will have no application in the present case as this is not a case where the accident was a result of use of a motor vehicle owned by the employer of the deceased."
"8. Perusal of the said Act of 1923 shows that there is no power conferred on the Commissioner to pass such an interim direction. Moreover, section 23 of the said Act of 1923 makes it abundantly clear that the Code of Civil Procedure, 1908 will apply only for the purpose of taking evidence on oath, for enforcing attendance of the witnesses and compelling production of documents and material objections. In any event, there is no power vesting in the Commissioner to pass an interim order directing the opponents in a claim petition to pay interim or ad hoc compensation."
12. Therefore, it follows from the authoritative pronouncement of this Court in the case of New India Assurance Co. Ltd. (supra) that, there is no power conferred on the Commissioner to pass interim direction, directing the petitioner herein in claim petition to pay interim or adhoc compensation. Therefore, the impugned order deserves to be set aside on the ground that, same is illegal.
13. In case any amount is deposited by the petitioner and same has been withdrawn by the respondents, in that case since main claim petition is pending before the learned Commissioner, the learned Commissioner will pass appropriate orders regarding refund / adjustment / recovery of the amount, if any already paid to the respondents-claimants. In case, no such amount is deposited by the petitioner, question of refund /adjustment / recovery would not arise.
14. Subject to what is observed above, the impugned order is quashed and set aside and the application made by the original claimants i.e. respondents herein, below Exhibit-5 for interim / adhoc compensation stands dismissed. Writ Petition is allowed to above extent and same stands disposed of. Rule made absolute on above terms. No order as to costs.