Proper determination of the insurance company's liability under Section 140 of the Motor Vehicles Act is essential before any order for compensation can be passed.

1. The insurance Company has filed this MiscAppeal against the order dated 22.2.2008 passed by the Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Kishanganj, in Claim Case No. 16/2006 whereby the appellant had been directed to pay Rs. 50,000/- on no fault basis under Section 140 of the Motor Vehicles Act to the claimants.

2. It appears that the claimants-respondents no. 1 and 2, i.e. the parents of the deceased Baldeo Lal @ Munna, filed the aforesaid claim alleging that their son aged about 18 years was engaged as agricultural labourer on a tractor by the owner respondent no.3. On 1.4.2005 the Cooli was sitting on the trailer of the tractor and in the way the trolley of the tractor turtled as a result of which the claimants son died. According to the claimants their son died because of rash and negligent driving of the driver of the tractor.

3. The Insurance Company appeared and filed contesting written statement alleging that at the material time of accident the tractor was being used for carrying bricks which was against the terms and conditions of the policy of Kissan Package Policy and, therefore, the Insurance Company is not liable to pay any compensation.

4. Thereafter an application under Section 140 of the M.V.Act was filed. The appellant objected on the ground that the risk of the deceased was not covered under the said policy taken by the insured.

5. By the impugned order the learned court below without deciding the issue raised by the appellant held that because of the fact that the vehicle in question was insured with the appellant Insurance Company is liable to pay in terms of compensation under Section 140 of the M.V.Act and directed the appellant to pay the same.

6. The learned counsel for the appellant submitted that the Insurance Company appellant has no liability in respect of persons traveling in the trolley. This point was raised by the appellant before the court below but instead of deciding that issue the learned court below directed the appellant to pay the interim compensation. The learned counsel further submitted that this question was purely question of law. And no procedure as required to decide the application under Section 166 of the M.V.Act was required to be followed. On these grounds the learned counsel submitted that the impugned order is liable to be set aside.

7. On the other hand, the learned counsel appearing on behalf of the claimants and owner respondents submitted that insurance was done for the tractor and trolley and, therefore, the Insurance Company is liable to pay the interim compensation because the policy being comprehensive covered the risk of third party. The learned counsel relied upon a decision reported in 2007(2) BBCJ V 8; Safique and others V/s. Manas Kumar Mukherjee and others.

8. From perusal of the aforesaid decision cited by the learned counsel for the respondents it appears that in that case extra premium was found to be paid for loading and unloading agricultural produce or equipments etc.

9. In a decision reported in (2007)6 SCC 657; Yallwwa (SMT) and others V/s. National insurance Co. Ltd. and another the Honble Supreme Court has held at paragraphs 11,16 and 17 as follows:

11. "One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an insurance company shall also be liable to deposit the amount while it has no fault (sic obligation) whatsoever in terms of sub-section (2) of Section 147 of the Act."

16. "The question which is required to be considered is what would be the meaning of the term "award" when such a contention is raised. Although in a given situation having regard to the liability of the owner of the vehicle, a Claims Tribunal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the l