This is an appeal preferred against order dated 7.9.2006 passed by 3rd Additional District Judge-cum-Claim Tribunal, Patna, in claim case no. 133/2003 filed by the claimant appellant, dismissing the claim application on the solitary ground that since it is independently filed under section 140 of the Motor Vehicle Act, (hereinafter referred to as the ‘Act’) is not maintainable.

2. The relevant short fact is that the deceased Gopal Ram husband of appellant no. 1 and father of remaining appellants died in a road accident on 4.7.1996 involving bus bearing no. BR-21-5011 and Trekker bearing no. BR-21-5744 and police case bearing Silao (Nalanda) P.S. Case No. 239/1996 was also registered under Section 279, 337, 338 and 304(A) of the Indian Penal Code.

3. The deceased was traveling from Trekker and due to head injury he had to loose his life and in support of the claim on behalf of petitioner appellants copy of First Information Report of Silao (Nalanda) P.S. Case No. 239/1996, post mortem examination report and death certificate of the deceased was filed in the case instituted against the owner of the vehicle and insurer also, wherein after hearing the court below, relying on a Single Bench decisions of this court in a case of Divisional Manager, Oriental Insurance Co. Ltd. Vs. Gulzari Kuer reported in 1999(1) PLJR 872, dismissed the application.

4. It is contended on behalf of the appellants by learned counsel Sri Sanjay Kumar Verma, that this issue has already been decided by division bench decision of this court in LPA No. 170/2001 in a case New India Assurance Co. Ltd. Vs. Faida Hussain reported in 2001(4)PLJR 557 and the decision of Single Judge Bench of this Court relied upon by the claim tribunal has already been overruled. On the other hand, learned counsel representing the insurer referring certain provisions of the Act and relying upon decision of the Apex Court in cases of Yallwwa & Ors. Vs. National Insurance Co. Ltd. reported in AIR 2007 SC 2582; Eshwarappa alias Maheshwarappa and Anr. Vs. C.S. Gurushanthappa and Anr reported in AIR 2010 SC 2907; Oriental Insurance Co. Ltd. Vs. Dhanbai Kanji Gadhvi and Ors. reported in AIR 2011 SC 1138 and cases between AIR 2011 SC 1138 and 2012(4) SCC 552 = 2012 ACJ 1305 (Surendra Kumar Arora and Anr. Vs. Dr. Manoj Bisla and Ors.), submitted that the claimants have only two options for realizing the claims either to file an application on no fault basis under Section 163A of the Act or on fault basis under Section 166 of the Act. The benefits as mentioned in Section 140 of the Act is ad interim, it can be claimed only in the applications preferred under aforesaid two provisions of the Act, but, the insurer has no liability, if any, application is preferred under Section 140 of the Act independently. It is further contended that multiplicity of the proceedings is prohibited and here provisions as contemplated under Order II Rule 2 of the Code of Civil Procedure also, if any claim, independently, under Section 140 is preferred, comes into play and becomes final.

5. In this appeal wherein short but significant question is to be determined:—

1. Whether application under Section 140 of the Act independently is maintainable? if so, whether it debarring the claimant from exercising rights under other provisions of Act and also whether the insurer is liable to pay the compensation to the claimants.

6. It is undisputed position that the Act provides two criteria for compensation to the claimants in the matter of motor accident on principle of either fault or no fault, and Section 140 of the Act is on principle of no fault. Here, before going through the different pronouncements relied upon by the learned counsels, it is better to first examine provisions as contemplated under Section 140 of the Act which reads as such:

140. Liability to pay compensation in certain cases on the principle of no fault.–(1) where death or permanent disablement of any person has resulted from an accident arising out