JUDGMENT
S.K. Dubey, J.
1. The insurer, the United India Insurance Co. Ltd., has come up in appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short ‘the Act’) against an interim award dated 15.7.1988, passed under Section 92-A in Claim Case No. 360 of 1987 by the Member, Motor Accidents Claims Tribunal, Mhow-Indore.
2. Mr. B.K. Samadani, learned Counsel for the appellant, raised a short submission that though the tractor was insured with the insurance company, but the trolley which was registered was not insured on which the deceased Dhansingh was sitting and by use of the said tractor and trolley on 5.1.1987 he died in a motor accident. Learned counsel contended that as the trolley was not insured, the Tribunal was not having any jurisdiction to pass an order under Section 92-A of the Act awarding Rs. 15,000/- as interim compensation.
3. Mr. Kishore Gupta, learned Counsel for the respondents, contended that the Tribunal after holding a prima facie enquiry has come to a finding that the insurance company is liable to pay Rs. 15,000/- under Section 92-A of the Act, on the basis of the first information report, post-mortem report, challan filed by the police against the driver and the affidavit of the claimant No. 1. On a prima facie enquiry the Tribunal found that the deceased was sitting on the tractor and not on the trolley. Alternatively, learned Counsel contended that even if it is found that the deceased met with an accident when he was sitting in the trolley and the said trolley is not insured, in that case too the insurance company is bound to pay the amount of compensation under interim award, which it can realise from the owner of the vehicle after the decision of the Tribunal. Learned counsel placed reliance on a decision of this court in Hafiz Mohammad Umar v. Kalloo 1987 (II) MPWN Note 160. Learned counsel for the respondents also contended that if the amount of compensation under the interim award has not been paid in a reasonable time, the claimants-respondents are entitled for interest.
4. After hearing the counsel, I am of the opinion that this appeal has no merit and deserves to be dismissed with costs. Mr. Samadani has placed a photostat copy of the policy before this court, from which it is apparent that the insurance company has covered the risk of the tractor with tractor-trolley wherein carrying capacity has been shown as one plus five. It is also not in dispute that this policy was in force at the time of the accident. The dispute raised before the Tribunal and before this court is only that the trolley which was insured by the insurance company does not bear the registered number. A bare perusal of the photostat copy of the policy shows that in this policy the registered number of the tractor is also not written, but only the engine number and chassis number with cubic capacity have been stated and also the name of the insured. In such state of affairs it cannot be said that the appellant company has insured some other trolley and not the trolley in question which was involved in the accident. Therefore, prima facie it is evident that the trolley and tractor were insured with the insurance company, namely, the appellant. In any case after the completion of the trial on merits, if it is found that the said trolley was not insured with the appellant company, the appellant will have a right to recover the amount paid on an interim award under Section 92-A of the Act. But at the stage of the proceeding under Section 92-A, the insurance company cannot avoid its statutory liability only on the ground that unless it is proved that the said trolley was insured with the appellant company it is not liable to pay the compensation of Rs. 15,000/-. Though there is no undertaking on behalf of the owner of the vehicle in the present case, but if the insurance company has to pay an amount to indemnify the insured and ultimately it is not found liable to pay, the insurance company has its remedy open to realise the same from the owner/insured of the vehicle.
5. Coming to the next question raised by the learned Counsel Mr. Kishore Gupta for payment of interest as the amount of interim compensation has not been paid within reasonable time, it is within the discretion of the Tribunal to award interest on such amount if it is not paid within a reasonable time. As the Tribunal has not awarded interest on the interim amount of compensation, I do not feel inclined to interfere in the said discretion in appeal. Let the record of the case be sent immediately so as to reach the Tribunal on or before 23.1.1989.
6. In the result this appeal filed by the appellant insurance company has no merit and deserves to be dismissed with costs. Counsel’s fee Rs. 400/- if already certified.
