BHAGWATI, J.—The appellant is found to have preferred the instant appeal against the judgment dated 12th August, 2011 whereby the Motor Accident Claims Tribunal, Chomu, District Jaipur, dismissed the claim petition of the appellant-claimant filed under Section 166 read with section 140 of the Motor Vehicles Act.

2. The facts of the case are that on 12th September, 2008, at about 6 pm, the appellant was standing and talking to one Kanhaiya lal at a place 1 k.m. Away from the village Jalsu. It is alleged that one Pick-Up bearing Registration No. RJ-14-GB-8058, being driven by its driver rashly and negligently, suddenly emerged from Dadabadi and hit both the appellant-claimant and Kanhaiya lal, as a result of which, the appellant sustained grievous injuries on his head and nose. The Tribunal did not rely upon the story of accident as narrated by the claimant and observed that the contradictions seeming in the statements of witnesses with regard to accident were galore which evinced the story of accident improbable. The manner, in which the story of accident has been projected, it casts doubt about its credibility.

3. Having argued for some time, the learned counsel for the appellant submitted that he did not press the appeal but canvassed that the Tribunal while dismissing the claim petition directed the claimant to refund the amount of interim compensation i.e. Rs.25,000/- to the Insurance Company, which was paid under Section 140 of the Motor Vehicles Act. The Tribunal further directed that in case the amount of 'no fault liability' i.e Rs.25,000/- was not deposited by the claimant, the respondent No.2 The Oriental Insurance Company Ltd. would be entitled to make recovery thereof from him. Learned counsel implores that the Insurance Co. may be directed not to recover the said amount of 'no fault liability' from the claimants. 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.

4. 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.

5. 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.

6. The case of the appellant is squarely covered by the judgment of Indira Devi (Supra) delivered by the Supreme Court, hence, the appeal filed by the appellant deserves to be partly allowed.

7. In view of above, the appeal filed by the appellant is partly allowed. The impugned judgment dated 12th August, 2011 rendered by the Motor Accident Claims Tribunal, Chomu, Dist

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