AMITAV K.GUPTA,J. - (1.) This appeal has been preferred against the order dated 29.09.2010 passed by the Additional District Judge, Fast Track Court VI cum Motor Vehicle Accident Claims Tribunal, Dhanbad in Title MV Suit No.267 of 2008 whereby the appellant/IFFCO TOKIO General Insurance Co. has been directed to pay the interim compensation under Section 140 of the Motor Vehicle Act, 1988 (for short "M.V. Act") of Rs. 50,000/to the respondents/claimants.
(2.) Before appreciating the arguments of the learned counsels, it would be necessary to briefly state the facts giving rise to the present appeal. The claimants' case is that the deceased Chandrika Paswan was going to attend the nature's call to the pond situated near Akash Kinari Colliery, P.S. Katras. He was hit by the vehicle being Tipper No. JH 10M 7062. He sustained grievous injury and died on the spot. It is alleged that the said truck was being driven rashly and negligently. A First Information Report bearing Katras P.S. Case No.282 of 2008 under Section 279 and 304A was registered against the driver. On investigation charge sheet was submitted against the driver.
(3.) Learned counsel for the appellant has submitted that it would be evident from the insurance policy, Annexure 1, that the insurance was for the plant and machinery and the said insurance policy was not issued under the Motor Vehicles Act. It is argued by the learned counsel that the court below has held that the occurrence had taken place within the operational area of M/s BCCL during the transit of the vehicle and it is not denied by the defendant (appellant herein) that the vehicle was not in use for operational purpose, thus, the exclusion clause is not adverse to the claimant. Learned counsel has submitted that Section 140 of the M.V. Act, 1988 is based on the principle of no fault liability being a beneficent provision for providing immediate relief to the legal heirs and representatives of the deceased however in terms of Clause 1 of Section 140 of the M.V. Act, the liability to pay the compensation is on the owner or owners jointly or severally. It is argued that the liability of the insurance company to indemnify the owner is provided under Section 145 of the Motor Vehicles Act. That perusal of the terms of the policy would reveal that certain exceptions are stipulated in the policy whereby the insurance company cannot be fastened with the liability to pay the compensation where the vehicle is in transit from one location to another as provided in Clause 2(h) of the policy. That as far as the third party liability is concerned, it has been stipulated in the contract that the third party who is a non-employee or nonworking member of the family of the insurer who sustain such injury at the site, as per Annexure 1, of the terms of the agreement. It is argued that the insurance policy along with the terms and conditions of the policy had been filed but the court below, without appreciating the terms and conditions has fastened the liability upon the insurer without giving an opportunity to the insurer/appellant to adduce evidence that the death of the deceased was not covered under the policy and the insurer was entitled to the benefit of the exception and the appellant/insurance company is not liable to indemnify the owner as the accident involved in the present case was not covered by the terms and conditions of the policy. It is argued that the application was filed under Section 140 of the M.V. Act simpliciter without any claim being filed under Section 166 of the Act and in such circumstance the court should have conducted a preliminary enquiry to establish that the insurer was liable to indemnify the owner in terms of the policy.;