JUDGMENT
M.Y. Eqbal, Acting C.J.
1. This appeal by the appellant-Insurance Company is directed against the judgment and award dated 23.6.2005 passed by the 1st Addl. District Judge-cum-Claims Tribunal, Jamshedpur in Compensation Case No. 134 of 2004 whereby he has awarded compensation to the claimants and directed the Insurance Company to pay the said amount.
2. The brief facts of the case are as under:
The claimants-respondents filed Claim Case and made application praying for payment of interim compensation for the death of Umesh Singh who died in a motor vehicle accident. According to the claimants, the deceased was proceeding by his cycle when a dumper bearing Registration No. JH-05B-5422 coming from opposite direction dashed against the cycle due to which the deceased succumbed to injuries. On being summoned by the Tribunal, the appellant appeared and contested the case by filing written statement taking a specific defence that the Policy Number mentioned in the claim application was not issued by any branch of the appellant Insurance Company. It was categorically denied that the dumper was insured with the appellant-Insurance Company. The appellant further took a specific defence that the alleged policy is a fake and fabricated document and, therefore, the appellant-Insurance Company is not liable to pay even interim compensation. The Tribunal in spite of specific defence taking by the Insurance Company, passed an order under Section 140 of the Motor Vehicles Act and directed the Insurance Company to pay the said amount holding that an order passed under Section 140 of the Act is neither final nor can prejudice the case of the parties.
3. When this appeal was taken up for hearing, this Court by order dated 15.2.2008 directed the learned Counsel appearing for the owner of the vehicle to seek instruction and file counter affidavit annexing the copy of the policy by which the vehicle was insured. Again the matter was taken up on 27.2.2008, but no counter affidavit was filed. This Court allowed time to the respondents for filing ropy of the original policy. The matter was again taken up on 10.3.2008 when similar order was passed directing the owner of the vehicle to file affidavit annexing copy of the policy.
4. On much persuasion, a counter affidavit was filed on 17.3.2008 by the owner of the vehicle. Paragraphs 7 to 10 or the said counter affidavit are worth to be reproduced herein below:
7. That the Deponent states that he got an information from his counsel while he was on the way to Punjab on 15.2.2008 that on 15.2.2008 the Hon’ble court had directed to the Deponent to file courier Affidavit and since the Deponent had fell ill at Punjab, he could not come earlier, though the marriage was performed and when he had come to Tata Nagar on 8th March, 2008, he immediately contacted his counsel and came to learn that the copy of the memo of appeal filed by the appellant was served on the counsel of the Deponent on 18.2.2008 and he was told by his counsel that the appellant had stated in the memo of appeal that the policy which was filed by She Deponent before the learned court below for releasing of his vehicle was forged, then he immediately tried to contact Sri Hari Prasad through whom he had got insurance of his vehicle and the premium for depositing in the United India Insurance Company Ltd. was given by the Deponent to Sri Hari Prasad who had told the Deponent that he is Agent of Insurance Company.
8. That the Deponent states that Sri Hari Prasad had given the documents of Insurance Policy to the Deponent immediately after depositing the premium in the Insurance Company and in good faith the Deponent though that Hari Prasad has got the Vehicle of the Deponent insured in the United India Insurance Co. Ltd.
9. That the Deponent states that immediately after coming to know of this fact that Insurance Policy is not genuine Policy, the Deponent lodged an F.I.R. at Sidhgora Police Station on 16.3.2008 against Sri Hari Prasad who had taken money from the Deponent for depositing of the Premium in the Insurance Co of the vehicle and had given Insurance Policy to the Deponent.
10. That the Deponent states that in any view of the matter if the alleged policy is found fake and forged then Sri Hari Prasad who had taken money from the Deponent for depositing in the United India Insurance Co. Ltd. is the person responsible for cheating the Deponent for which the Deponent has lodged an F.I.R. against him.
5. From the aforesaid statements made in the counter affidavit, it is evidently clear that the vehicle was not insured with the appellant-Insurance Company, but a fake and forged policy was shown in the case. Despite specific defence taken by the Insurance Company that the vehicle was not insured, the Tribunal erroneously directed the appellant-Insurance Company for payment of interim compensation to the claimants.
6. There is no dispute with regard to legal proposition that an award of interim compensation can be passed against the Insurance Company only when prima facie it is proved or admitted that the vehicle was insured with the Insurance Company. If the vehicle is not insured by obtaining a proper insurance policy, the question of payment of interim compensation by the Insurance Company does not arise at all. The Tribunal, therefore, committed serious illegality in holding that the question with regard to insurance of the vehicle shall be considered at the final stage. The impugned award, therefore, cannot be sustained in law.
7. This appeal is, therefore, allowed and the impugned order is set aside. Consequently, the interim compensation awarded by the Tribunal is to be paid by the owner of the vehicle and not by the appellant-Insurance Company.
D.K. Sinha, J.
8. I agree.