JUDGEMENT

Date : 19-07-2024 The appeal is barred by limitation of 219 days. The delay is explained in a petition filed under Section 5 of Limitation Act vide I.A. No.9290 of 2015. Hence, the delay is condoned. I.A. No.9290 of 2015 is, accordingly, allowed.

2. Heard learned counsel for the appellants and perused the LCR. Despite given sufficient opportunity, after service of notice no one appeared on behalf of respondents.

3. This Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “Act of 1988”) on behalf of the appellants against the order dated 21.03.2014 passed by the learned District Judge-

cum-Motor Accident Claims Tribunal, Bhagalpur (hereinafter referred to as “Learned Tribunal”) in Claim Case No.6 of 2013.

4. The claimants are mother, widow and minor child of the deceased Late Manikant Sharma who died in the motor vehicle accident which takes place on 27.08.2012 at Kalmeshwar Nagpur Road while traveling on a motorcycle from Pardi to Nagpur bearing Registration No. MH-31-EC-8869 which was hit by an unknown vehicle causing his death on the spot. The claimants filed the claim petition being Claim Case No.06 of 2013 against owner and insurer (appellant) of the motorcycle on which the deceased was driving, in the Court of the District Judge-cum-Motor Accident Claims Tribunal, Bhagalpur under Section 166 of the M.V. Act claiming Rs.12,89,500/- as compensation and during the pendency of the claim petition they filed the petition under Section 140 of the M.V. Act, read with Rule 246 (1) of Bihar Motor Vehicle Rules, 1992 claiming Rs.50,000/- as interim compensation on the ground of no fault liability.

5. The appellants/Insurance Company in the objection stated that the claim petition as framed against the appellant is not maintainable in view of the fact that F.I.R. of Kalmeshwar P.S. Case No.163 of 2012 amply prove that unknown vehicle dashed the Motorcycle head to head and the Police authority charge-sheeted to the driver of unknown vehicle and the claimants have only right to file this case before the Solatium Fund Chairman. The claimants has never disclosed that in what capacity the deceased was plying the motorcycle of the owner in whose name (Amar Kumar Singh) the motorcycle bearing Registration No. MH-31-EC-8869 was insured with the appellant/Insurance Company. It is further stated that the owner of alleged motorcycle has never disclosed the relation between owner and motorcyclist who died in the accident. It is further submitted on behalf of Insurance Company that it is a case of hit and run and accordingly claimants are not entitled to get interim amount of compensation under Section 140 of the M.V. Act.

6. The contention on behalf of claimants before the Learned Tribunal is that this is not the case falling within the definition of hit and run as the motorcycle which met accident by unknown vehicle is identified one and the same was insured at the material time which is not in dispute.

7. The Learned Tribunal allowed the said petition and held that claimants are entitled to get the amount of interim compensation on the basis of no fault liability and the points raised by the Insurance Company may be considered in course of the trial of the case.

8. Learned counsel for the appellants/Insurance Company has submitted that the case of the claimants and the material on record, the deceased was driving the bike of the owner (respondent no.4) and was going alone at the time of accident. The deceased stepped into the shoes of owner as he took the bike from the owner and literally became owner, in control of the vehicle, therefore, neither the claim case is maintainable nor the claimants are entitled to compensation from the appellants.

9. Section 161 (1) (b) of the Motor Vehicle Act, 1988 states that hit and run motor accident means an accident arising out of th