BHAGWATI, J.—Learned counsel for the appellants submitted that he did not press the appeal on merits but canvassed that albeit the learned Tribunal decreed an amount of Rs. 9,719/- in favour of claimant appellant, but while deciding the claim petition directed that the non claimant-Insurance Company shall be entitled to recover the remaining amount of Rs. 15,281/- out of the no fault liability of Rs. 25,000/- from the claimant. Learned counsel implores that the non claimant-Insurance Company may be directed not to recover the said amount of 'no fault liability' from the claimant. To justify his prayer, he has cited one judgment of Apex Court rendered in the case of Indira Devi & Ors. vs. Bagada Ram & Anr. reported in 2010 ACJ 2451 = 2010(2) CCR 873 (SC) in support thereof.

2. In the case of Indira Devi & Ors. (supra), the Apex Court relying upon the judgment of the Supreme Court delivered in the case of Eshwarappa vs. C.S.Gurushanthappa, C.A. No. 7049 of 2002 = 2010(2) CCR 818 (SC), observed that the Tribunal was patently in error, in directing for the refund of the amount of 'no fault compensation' already paid to the claimant, by the Insurance company. The High Court was equally in error in missing out this grave mistake in the judgment passed by the Claims Tribunal and not setting it aside.

3. In the above case, one Motorcyclist dashed against the rear part of the Truck and died on the spot. The Tribunal held that the accident took place due to the careless and negligent driving of the motorcyclist. Hence, he was not entitled to claim any compensation from the Insurance Co. and directed the claimant to refund the amount of 'no fault liability' to the Insurance Co. The claimants preferred an appeal against the judgment of Tribunal and the High Court also while dismissing the appeal observed that the Insurance Co. was entitled to make recovery of amount of 'no fault liability' paid under Section 140 of the Motor Vehicles Act. The Apex Court held that the compensation under Section 140 of the Act was regardless of any wrongful act, neglect or default of the person in respect of whose death claim was made and thus, held that the order of the Tribunal in so far as it permitted the Insurance Co. to recover the amount of interim compensation along with the interest from the claimants-appellant, was erroneous and unsustainable.

4. The case of the appellant is squarely covered by the judgment of Indira Devi (Supra) delivered by the Supreme Court.

5. In view of above, the impugned judgment and award dated 21st October, 2011 rendered by the Motor Accident Claims Tribunal, Chomu with regard to the award amount is upheld, but the order with regard to refund of amount awarded under 'no fault liability' and the right given to the non claimant-Insurance Company to make recovery of interim compensation from the claimant, is set aside.

6. With the afore-stated directions, the appeal stands disposed of accordingly.

7. Consequent upon the disposal of the appeal, the stay application, filed therewith, does not survive and the same also stands disposed of, accordingly.

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