Dinesh Kumar Vs. Babulal and ors.

Dinesh Kumar vs Babulal and ors.

Disposition Misc. appeal allowed Court Madhya Pradesh Decided Dec 11, 2002

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Citation: sooperkanoon.com/510567
Court: Madhya Pradesh High Court
Judge: A.K. Gohil, J.
Decided On: Dec 11, 2002
Case Number: Misc. Appeal No. 32/2002
Subject: Motor Vehicles;Civil
Disposition: Misc. appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Ful...

Key legal issue: Motor Vehicles;Civil
Outcome / disposition: Misc. appeal allowed
Acts & sections: Motor Vehicles Act, 1988 - Sections 140, 149(2) and 173

Parties & Advocates

Appellant / Petitioner

Dinesh Kumar

Advocate Manish Jain, Adv.

Respondent

Babulal and ors.

Advocate P.K. Gupta, Adv. for Respondent No. 3

Legal References

Acts: Motor Vehicles Act, 1988 - Sections 140, 149(2) and 173
Cases Referred: (The Oriental Insurance Company v. Gyarsibai and Ors.
Reported In: I(2003)ACC372; III(2003)ACC241; 2003ACJ2100; 2003(2)MPHT205; 2003(2)MPLJ123

Excerpt

.....all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - leelaram punjabi), after considering the various decisions of the supreme court, this court as well as various other high courts, i have already held that no fault liability is a statutory liability and defence under section 149(2) of the act is not available to the insurance company at the stage of interim compensation provided that the vehicle is insured with the insurance company......acj 248) and in the case of oriental insurance co. ltd. v. annamma abrahim and ors. (1995 acj 1189), in which it has been held that the conditions of the policy is foreign to the scope of enquiry in a claim under section 140 of the motor vehicles act.4. by order dated 20-3-2001 in miscellaneous appeal no. 907/98 (gopilal v. leelaram punjabi), after considering the various decisions of the supreme court, this court as well as various other high courts, i have already held that no fault liability is a statutory liability and defence under section 149(2) of the act is not available to the insurance company at the stage of interim compensation provided that the vehicle is insured with the insurance company. it was further held that now it is settled position under the law that while deciding an application for interim compensation under section 140 of the act under no-fault liability, no defence is available to the insurance company under section 149(2) of the act and the question about the violation of the terms and conditions of policy cannot be looked into and considered at this stage. likewise, in miscellaneous appeal no. 978/97 (the oriental insurance company v. gyarsibai and ors.), decided on 29-10-2002, i have taken a similar view that at the stage of deciding an application for interim compensation under no-fault liability, the only question of insurance of the vehicle is required to be considered and if the vehicle is insured and death or permanent disablement has resulted from the accident arising out of the use of a motor vehicle, it is not required for the claimant to prove any wrongful or negligent act of the owner/driver of the vehicle. in my considered view even the liability cannot be apportioned between the owner and insurer of the vehicle and the insurer is liable for payment of full interim compensation, if the vehicle is insured. thus, in this case it is clear that while considering the application under section 140 of the act for awarding.....

Full Judgment

ORDER

A.K. Gohil, J.

1. Claimant has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the interim award dated 4-12-2001 passed by Additional Member, M.A.C.T., Shajapur in Claim Case No, 52/2000.

2. Appellant/claimant, who has received permanent disablement in an accident on account of the injuries, has applied for compensation under the principle of no-fault liability under Section 140 of the Motor Vehicles Act. The Tribunal after allowing the application filed by the claimant directed for payment of an interim award of Rs. 25,000/- to be paid by the owner and the Insurance Company equally and that the share to be paid by the InsuranceCompany shall be deposited in a Nationalised Bank as fixed term deposit for a period of one year, against which the claimant has filed this appeal.

3. The Tribunal has apportioned the liability between the owner and the Insurance Company on the proportion of 50 : 50 on the ground that the driver of the vehicle was not having valid driving licence on the date of accident. It was submitted by the Counsel for the appellant that such a defence by the Insurance Company cannot be taken while considering the application under Section 140 of the M.V. Act for awarding compensation under no-fault liability. In support of his contentions he has placed reliance on the decisions of this Court in the case of National Insurance Co. Ltd. v. Thaglu Singh and Ors. (1995 ACJ 248) and in the case of Oriental Insurance Co. Ltd. v. Annamma Abrahim and Ors. (1995 ACJ 1189), in which it has been held that the conditions of the policy is foreign to the scope of enquiry in a claim under Section 140 of the Motor Vehicles Act.

4. By order dated 20-3-2001 in Miscellaneous Appeal No. 907/98 (Gopilal v. Leelaram Punjabi), after considering the various decisions of the Supreme Court, this Court as well as various other High Courts, I have already held that no fault liability is a statutory liability and defence under Section 149(2) of the Act is not available to the Insurance Company at the stage of interim compensation provided that the vehicle is insured with the Insurance Company. It was further held that now it is settled position under the law that while deciding an application for interim compensation under Section 140 of the Act under no-fault liability, no defence is available to the Insurance Company under Section 149(2) of the Act and the question about the violation of the terms and conditions of policy cannot be looked into and considered at this stage. Likewise, in Miscellaneous Appeal No. 978/97 (The Oriental Insurance Company v. Gyarsibai and Ors.), decided on 29-10-2002, I have taken a similar view that at the stage of deciding an application for interim compensation under no-fault liability, the only question of insurance of the vehicle is required to be considered and if the vehicle is insured and death or permanent disablement has resulted from the accident arising out of the use of a motor vehicle, it is not required for the claimant to prove any wrongful or negligent act of the owner/driver of the vehicle. In my considered view even the liability cannot be apportioned between the owner and insurer of the vehicle and the insurer is liable for payment of full interim compensation, if the vehicle is insured. Thus, in this case it is clear that while considering the application under Section 140 of the Act for awarding compensation under no-fault liability, the defence of the Insurance Company that the driver was not having a valid licence at the time of accident could not have been considered at this stage and the Tribunal, has erroneously apportioned the liability between the owner and the Insurance Company.

5. Accordingly, this appeal deserves to be allowed and the impugned order is set aside to this extent and it is directed that the InsuranceCompany is liable to pay the full amount payable under the interim award withinterest to the claimant within a period of thirty days and the direction withregard to deposit of half of the awarded amount in the Nationalised Bank alsodeserves to be and is set aside as it would defeat the purpose of granting interimcompensation. Parties shall bear their own cost.

C.C. in 3 days.

Same Court & Year Madhya Pradesh · 2002 Same Parties Dinesh Kumar vs Babulal and ors. Same Subject Motor Vehicles;Civil Same Judge A.K. Gohil, J. Acts & Sections Motor Vehicles Act, 1988 - Sections 140, 149(2) and 173

Motor Vehicles;Civil