The main legal point established in the judgment is the consideration and adjustment of payments made in accordance with the law while settling the extent of liability of the insurer and the owner of the vehicles.

JUDGMENT :

P.K. Tripathy, J. - Award u/s 140 of the Motor Vehicles Act, 1988 (in short, 'the Act') passed in Misc. Case No. 336 of 1995 by Second MACT, Cuttack on 27.10.1997 is under challenge at the instance of M/s. New India Assurance Company Ltd. (in short. 'Insurance Company') which figures as Opp. party Nos. 3 and 4.

2. It is not disputed at the Bar so far as the facts are concerned. When a horrible accident on 26.4.1995 on the Express Highway near Kusunpur occurred due to head on collision between a 'Trekker' and a 'Truck' both insured with the Appellant-Insurance Company at different branches that accident took a tool of 13 human lives at the spot besides causing injuries to several Ors. . Claim cases were filed and the present one is one of such claim cases in which the dependants and the legal representatives of the deceased have made claim for compensation. They moved application u/s 140(1) of the Act for 'no fault liability' as an interim measure. Admittedly no evidence was adduced and learned Tribunal called for and perused the G.R. Case record in which the accident and the death has been noted and after being satisfied about the death of the deceased he awarded a sum of Rs. 50,0007- in accordance with Section 140(2) of the Act jointly as against Opp. party Nos. 3 and 4 i.e. the Appellants.

3. The Insurance Company availing the opportunity as provided in Section 173 of the Act, has preferred this appeal. Contention of learned Counsel for the Appellant in a nutshell is that when the Trekker had the capacity to carry nine passengers excluding the driver, and the Insurance Company under the Policy had extended its liability to that extent, grant of interim relief u/s 140 to thirteen death victims of the motor accident, is beyond the liability undertaken by the Company and therefore the present case should be considered whether it should come within the first nine. His other contention is that when the accommodation of passenger beyond the capacity, i.e. altogether 21 in number in the Trekker contributed to the accident, the extent of liability of the Insurance Company should be appropriately considered even at the stage of consideration of the liability u/s 140 of the Act. Appellant also argues that the Claims Tribunal may be directed to analogously dispose of all such claim cases so that in view of the peculiar facts and circumstances involved in this case, the extent of liability of the Insurance Company can be crystalised and accordingly the Insurance Company shall be made liable to pay to the extent its liability extends. Appellant also prays for issue of direction for early disposal of such cases.

4. Learned Counsel appearing for the claimants on the other hand argues that the questions, as raised above by the Appellant, are required to be considered at the time of hearing of the case on merit and at the stage of consideration of no fault liability the aforesaid contentions of the Appellant deserves no consideration. Whether or not the Insurance Company has the liability to pay the no fault dues to the family of all the 13 deceased persons, but in view of the recent decision of the apex Court in the case of New India Assurance Co., Shimla Vs. Kamla and Others etc. etc. even if any amount is paid in that respect, that can be recovered or adjusted in accordance with law while settling the extent of liability of the insurer and the owner of the vehicles. However, peculiarly enough the claimants/Respondents do not agree for early disposal of the claim cases as the learned Counsel appearing for the Respondents does not agree to the proposal given by the learned Counsel for the Appellant in that respect.

5. The factual aspect of the case which is not disputed by the parties resolves the dispute at present regarding payment of 'no fault liability' by the insurer of the Trekker with respect to nine deceased. When both the vehicles were insured with the same Insurance Company and the death occurred as a result of head on colli