A.P. Bhangale JUDGMENT
A.P. Bhangale, J.
1. Heard.
2. Admit.
3. Mr. Ashish Kadukar, learned Counsel waives service on behalf of Respondent No. 1 and Mr. Rajnish Vyas, learned Counsel waives service on behalf of Respondent Nos. 5 and 6.
4. This appeal by the Insurance Company questions legality and validity of the impugned order below Exh.2 in M.A.C.P. No. 149 of 2011 whereby the learned Chairman, Motor Accident Claims Tribunal, Chandrapur by order dt. 8.7.2014 allowed the application for interim compensation under Section 140 of the Motor Vehicles Act, 1988 directing non-applicant nos. 1 to 3 jointly and severally to pay a sum of Rs. 50,000/- with interest @ 9 % p.a. from 15.9.2012 till realisation of the amount. On realisation of entire amount, the amount of Rs.10,000/- each was directed to be invested in the name of the minor claimants in fixed deposit in any nationalised bank till they attain the age of majority and balance amount was directed to be paid to the claimant no. 1 Kalpana.
5. Brief facts are that, on 6.3.2011, Shahajirao Bhonduji Bhoyar proceeding on a bicycle was dashed by offending motor vehicle bearing registration No.MH-34/T-481. In the accident, Shahajirao died in the hospital on 8.3.2011. The motor cycle belonged to respondent no. 5 Pocham Rajlingu Rahulawar and it was driven by respondent no. 6 Mohan Raymalu Mithuwar at the time of accident. Interim compensation claim was resisted on the ground that the driver was driving the motor vehicle under the influence of liquor and that the owner of the offending motor cycle had relied upon fake and bogus policy dt. 3.3.2012. It is contended by the appellant that no Insurance Policy, as produced, was issued by the appellant and furthermore that it was fake and bogus. It is, thus, submitted that the learned Chairman of the Tribunal committed an error of law to award interim compensation holding the appellant jointly responsible along with the owner and driver of the offending motor cycle. According to the learned Counsel for the appellant, it was primary duty of the Tribunal awarding compensation u/s.140 of the Motor Vehicles Act, 1988 to satisfy itself as to whether there was privity of contract between the parties so that liability can be saddled upon the Insurance Company. Secondly, it is submitted that the motor cycle was driven without valid motor driving license and therefore, discretion to award compensation u/s.140 of the Motor Vehicles Act, 1988 was not exercised properly and therefore, the impugned order is liable to be quashed and set aside.
6. Mr.A.J. Pophaly, learned Counsel for the appellant referred to the ruling in the case of New India Assurance Co. Ltd. vs. Babasaheb Anna Mali and Others reported in MANU/MH/0626/2001 : 2001 (4) Mh.L.J. 562 to argue that when extra premium was not paid in the Insurance policy to cover pillion rider, the expression "third party" in the policy would not cover the pillion rider of the motor vehicle and therefore, the Insurer could not have been saddled with no fault liability under Section 92-A of the Motor Vehicles Act (4 of 1939). This ruling appears under the old Act, u/s.92-A of the Old Act of 1939 and the Division Bench of the Bombay High Court has considered Section 95 of the Act of 1939, also requirement of policy contract and after considering the legal position then prevailing, the Judgment of the Single Bench directing the Insurer to deposit sum of Rs.3,500/- was held as legally not sustainable and was set aside.
7. Next ruling pointed out is also under the old Act in the case of New ........