A.K. Padhi, J.
1. Challenging the direction to the insurer to indemnify the owner regarding the liability under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), the insurer has filed this appeal.
2. In the claim petition it is asserted that on 17.8.1990 the deceased after completion of his work in Kaniha Block was returning in a jeep bearing registration No. MVZ 3534 belonging to Mineral Exploration Corporation Ltd. Due to rash and negligent driving of the driver, the jeep capsized, as a result of which he died on the spot. Claimants are the legal representatives of the deceased. An application under Section 140 of the Act was filed on 30.3.1991. The owner of the vehicle appeared and filed its written statement admitting the accident and claimed to be indemnified by the insurer. The insurer appeared and prayed for time to file written statement.
3. Basing on the application of the claimants, Tribunal passed the impugned order dated 11.12.1991 directing the insurer to pay Rs. 25,000/- as per the mandate of Section 140 of the Act. Challenging the above order directing the insurer to pay a sum of Rs. 25,000/- on no fault liability, this appeal has been filed assailing on the grounds that the application under Section 140 of the Act was barred by time and the order has 'been passed without condonation of delay. The date on which the order was passed, it was not posted for hearing. Therefore, natural justice has been violated.
4. A preliminary objection was raised by the claimants-respondents questioning the maintainability of the appeal. Mr. K.N. Sinha, counsel for the claimants, vehemently submitted that in view of the fact that Section 140 of the Act occurs in Chapter X and no appeal having been provided in that Chapter the appeal is not maintainable. For the above submission he placed reliance on the decisions in Rajasthan State Road Transport Corporation v. Chhitariya 1991 ACJ 32 (Rajasthan); Gay a Prasad v. Suresh Kumar 1992 ACJ 200 (MP); State of Assam v. Pranesh Debnath 1993 ACJ 422 (Gauhati) and New India Assurance Co. Ltd. v. Motor Accidents Claims Tribunal 1993 ACJ 413 (J&K;).
5. Answering the question of maintainability of the appeal, Mr. Mohanty, counsel for the insurer, submitted that Section 140 of the Act saddles liability on the owner to pay a sum of Rs. 25,000/- on no fault liability. The legislative intention is to give speedy remedy to the destitutes of a person who had died in a vehicular accident, therefore, it is mandated in Chapter X that the Tribunal is not to adjudicate regarding the rash and negligent act of the driver who caused the accident. Application under Section 140 of the Act can be filed independently or along with an application for compensation as envisaged under Section 166 of the Act and it has to be disposed of by summary procedure. Section 140 of the Act confers substantive right on the claimant and has not prescribed the procedure. The liability is fastened on the insurer by inclusive definition of 'liability' as per Section 145(c) of the Act. Reading all the provisions of the Act together it is clear that an order under Section 140 of the Act is also an award and, therefore, appeal is maintainable under Section 173 of the Act and in support of the above submission Mr. Mohanty relied on the decisions in Sulochna v. Gurbachan Singh 1989 ACJ 667 (Bombay); Bhanwarsingh v. Gatubai 1989 ACJ 1137 (MP); Sant Ram v. Surya Pal 1986 ACJ 202 (Allahabad) and United India Insurance Co. Ltd. v. Padmavathy 1990 ACJ 751 (Kerala).
6. In the case of Gaya Prasad v. Suresh Kumar 1992 ACJ 200 (MP), their Lordships have opined that no appeal lies against an order under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the new Act'). The same view has been taken in the case of State of Assam v. Pranesh Debnath 1993 ACJ 422 (Gauhati) and New India Assurance Co. Ltd. v. Motor Accidents Claims Tribunal 1993 ACJ 413 (J&K;).
7. Contrary view has been taken in Sulochna v. Gurbachan Singh 1989 ACJ 667 (Bombay) and Bhanwarsingh v. Gatubai 1989 ACJ 1137 (MP), wherein while considering as to whether appeal lies against an order passed under Section 92-A of Motor Vehicles Act, 1939 (hereinafter referred to as 'the old Act'), their Lordships have opined that appeal lies against such order. Section 92-A of the old Act is pan materia with Section 140 of the new Act. Section 110-A of the old Act is pan materia with Section 166 of the new Act and Section 110-B of the old Act is pari materia with Section 168 of the new Act. Section 110-D of the old Act is pari materia with Section 173 of the new Act. In United India Insurance Co. Ltd. v. Padmavathy 1990 ACJ 751 (Kerala), their Lordships have held that appeal lies against an order passed under Section 140 of the new Act.
8. To consider the question of maintainability under the new Act relevant provisions of the Act need be quoted-
Section 140. Liability to pay compensation in certain cases on the principle of no fault.-(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this Section.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person shall be a fixed sum of twenty-five thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twelve thousand rupees.
(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.
(4) A claim for compensation under Sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
Section 141(3) (a) and (b) reads as follows:
141. Provisions as to other right to claim compensation for death or permanent disablement.
xxx xxx xxx(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and-
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.
Section 144-
Overriding effect.-The provisions of this Chapter shall have effect, notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.
All the above provisions occur in Chapter X of the new Act. Section 145 which occurs in Chapter XI defines 'liability' as follows:
xxx xxx xxx
(c) 'liability', wherever used in relation to the death of, or bodily injury to, any person, includes liability in respect thereof under Section 140;
Section 149(1) which casts duty on the insurer to satisfy the judgments and awards reads like this:
Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) if, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.(2) xxx xxx xxx
Section 165 which occurs in Chapter XII speaks about the jurisdiction of the Claims Tribunal and the explanation to Section 165 reads like this:
Explanation.-For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles' includes claims for compensation under Section 140.
Section 166 of the Act lays down the procedure regarding modality for application for compensation. Section 166(2) which is important for adjudication of the case reads like this-
(2) Every application under Sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred and shall be in such form and shall contain such particulars as may be prescribed:
Provided that where any claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
Section 168 which is very important for adjudication reads like this:
Award of the Claims Tribunal.-(1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, a the case may be, each of the claims and subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this Section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
Section 173, the appellate provision, which reads as follows:
Appeals.-(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court;
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.
Section 168 of the new Act deals with 'Award' of the Claims Tribunal. Sub-section (1) lays down the procedure regarding disposal of application made under Section 166 and its proviso deals with disposal of the application made under Section 140. Sub-section (2) mandates that the Claims Tribunal shall arrange to deliver copies of the award to the parties. Sub-section (3) says that when an award is made under this Section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct. Thus, it is clear that the order under Section 140 is an interim award. Such an award can be passed only after the opposite party or parties concerned are given opportunity to file their statements. Before passing such an order the Claims Tribunal must be satisfied that conditions specified in Section 140 have been substantiated to make an award under the Section. In my view, the order passed under Section 140 is an award, hence, an appeal is maintainable under Section 173. Even though the order under Section 140 is not the final order it partakes the character of an award and has all the trappings of it. Therefore, preliminary objection is overruled.
9. Now coming to the merit of the case I find from the order-sheet vide Order No. 6 dated 23.9.1991 that the matter was adjourned to 11.12.1991 for filing of written statement by the opposite party No. 2 and further order on the service return of the opposite party No. 1. Order No. 7 dated 11.12.1991 indicates that the matter was posted to 14.4.1992 for settlement of issues, but on the same day the order under Section 140 of the new Act has been passed. On 11.12.1991 an advance petition was filed by the claimants. Although the advance petition indicates that a copy was served on the counsel for the appellant it does not indicate at what point of time the copy was served. The order-sheet dated 11.12.1991 also indicates that the opposite party No. 2 was set ex pane and the court had posted for adjudication of the claim petition to 14.4.1992. Therefore, order Nos. 6 and 7 indicate that the order under Section 140 has been passed in violation of natural justice. Insurer takes up the liability of the insured under certain circumstances. Section 140 of the new Act mandates the owner of the vehicle in case of death to pay a sum of Rs. 25,000/- without adjudication of the application regarding rashness and negligence by the Tribunal which is commonly known as no fault liability. The liability of the owner is shifted to the insurer under certain circumstances. Therefore, the Tribunal was bound to adjudicate as to whether the insurer has the liability to indemnify the owner. Application under Section 140 as well as the claim petition had been filed after limitation had set in and there was delay of 42 days in filing the claim petition. Delay was condoned ex pane.
10. The application under Section 140 of the Act was registered as Misc. Case No. 80 of 1991 and the application under Section 166 of the Act praying for compensation was registered as M.A.C. No. 79 of 1991. In M.A.C. No. 79 of 1991, delay has been condoned ex pane, but in Misc. Case No. 80 of 1991 no order has been recorded condoning the delay. The two orders passed in Misc. Case No. 80 of 1991 are extracted below:
Order No. 2 dated 30.3.1991:
Misc. Petition under Section 140 of the Motor Vehicles Act praying for grant of interim compensation worth Rs. 25,000/- for the death of Shuhrid Kumar Ghosh is also presented. Register. Put up with office notes on 30.3.1991.
Order No. 4 dated 30.3.1991: Misc. 80-91:
Office note is ready. Requisites have been filed and court fees have been paid. Heard. Admit. Issue notice to the O.Ps. 8.7.1991 awaiting S.R. and W.S.
Order dated 8.7.1991 reflects that service return was not back by that date, therefore, it was posted to 23.9.1991 for service return. On 23.9.1991 appellant prayed for time to file written statement and the matter was posted to 11.12.1991 for filing the written statement and service return of the owner. Order dated 11.12.1991 indicates that the owner appeared on that day, filed power in favour of the counsel and filed written statement. The order-sheet dated 11.12.1991 which is relevant for consideration of the controversy in issue is extracted below:
MAC. 79/91/Mwc. 80-91: Order No. 1 dated 11.12.1991:
Advocate for the petitioners filed hazira. The O.P. 1 files vakalatnama in favour of Mr. C. Khatua and another, advocates. Advocate for the O.P. 1 files W.S. in both the cases. Copy served. None appears today for the O.P. 2 nor files W.S. The O.P. 2 is set exparte. Call on 14.4.1992 for settlement of issues.
As it appears, on that day, i.e., 11.12.1991 an application was filed for advance petition of heaiing. In the advance petition no time is given. The advance petition was received by the appellant with objection. The advance petition for hearing reads as follows:
(1) That in the above case the sole bread-earner of the petitioners died in the motor vehicle accident.
(2) That the petitioners have filed the above Misc. Case for an interim award under Section 140 of the Motor Vehicles Act which is pending now for disposal.
Hence, it is prayed that your honour may be gracious enough to call for the record and pass the orders.
And for this act of kindness, the petitioners shall ever pray.
Basing on this advance petition filed by the claimants the award under Section 140 of the Act awarding a sum of Rs. 25,000/- has been passed and the appellant was directed to indemnify the same.
11. Section 140 of the Act is a benevolent provision for giving speedy remedy to the destitute legal representatives of a person who dies by accidental death. In an enquiry under Section 140 of the Act it is not necessary on the part of the claimants to establish that the death in respect of the deceased was due to any wrongful act, neglect or default of the owner or owners of the vehicle. The only ingredients to be established by the claimants to attract the provision of Section 140 of the Act is that an accident had occurred by a vehicle and the death was resultant of the accident. In order to fasten the liability on the insurer, the Tribunal has to further find out as to whether the insurer had the liability to indemnify the owner as by the inclusive definition of Section 145 of the Act the insurer is liable to indemnify any compensation payable by the owner under Section 140 of the Act. It is the owner's liability which is fastened on the insurer under certain circumstances. Admittedly, the enquiry which is contemplated under Section 140 of the Act should not be an elaborate one and has to be of summary nature. This is also very clear from the rules 27 and 28 of the Motor Vehicles (Accidents Claims Tribunals) Rules, 1960. But the basic requirements of principles of natural justice are to be followed.
12. In this case neither any application for condonation of delay has been filed, nor the court has condoned the delay. Natural justice has been violated as on an advance petition filed on 11.12.1991, the impugned order was passed on that date. In that view of the matter, the impugned order is not sustainable which is, therefore, set aside.
13. The matter is remitted to the Tribunal for fresh consideration. The Tribunal shall give opportunity to the appellant and shall dispose of the matter as expeditiously as possible in accordance with law.
Before parting with the case, I express my appreciation to Mr. Sinha and Mr. Mohanty who have argued the case elaborately and assisted the court by placing all the relevant points fairly.