IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO.No. 503 of 2007. Date of Decision: 4.5.2011. _______________________________________________ New India Assurance Company Limited. … Appellant. Versus. Akshay Kumar and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. No. For the petitioners :Mr. Praneet Gupta, Advocate. For Respondent-1 to 4. :Mr.Romesh Verma, Advocate. For respondent-5. :Mr.Dibender Ghosh, Advocate. Dev Darshan Sud, J.(Oral). This appeal has been preferred by the Insurance Company against the award made by the Commissioner, under the Workmen’s Compensation Act, Shimla awarding a sum of Rs. 4,84,542/- to the petitioners who are the son, daughter and wife of deceased Mohan Lal who died in a motor accident. This appeal was admitted on 23.6.2008 on questions of law as set out in the appeal: 1. Whether insurer is liable for the interest imposed on the amount of compensation determined by the Commissioner when the Insurance Policy expressly had excluded such liability?. 2. Whether the Insurance Company is liable to pay interest from the date of accident or from one month after the date of adjudication of the claim?. Whether reporters of the Local papers are allowed to see the judgment.yes. 2 3. Whether the Insurance Company is liable to pay the amount at the first instance in cases of violation of terms of policy despite the law laid down by the Apex Court in National Insurance Co.Ltd. Vs. Bommithi Subbhuijamma & others 2005 (II) ACJ 721?. 2. Adverting to the third question, in Mohan Lal V. Smt. Veena Devi & Ors 2010 (1) Him.L.R.27, referring to the decision of the Supreme Court in National Insurance Company Limited V. Parvathneni and another, (2009) 8 SCC 785, this court held: 7. Learned counsel appearing for the claimants submits that the Insurance Company would be free to recover this amount in execution from the owner. He placed reliance on the decision of the apex Court in National Insurance Company Limited Vs. Parvathneni and another (2009) 8 S.C.C. 785 in which it has been held as under: “4 No doubt, there are some decision which have taken the view that even if the insurance Company has no liability, yet it must pay and later on recover it from the owner of the vehicle. (See for example National Insurance Co. Ltd. V. Yellamma, (2008) 7 SCC 526: (2008) 3 SCC (Cri) 177, Samundra Devi V. Narendra Kaur, (2008) 9 SCC 100: (2008) 3 SCC (Cr) 690 (vide SCC p.104, para 16), Oriental Insurance Co. Ltd. V. Brij Mohan, (2007) 7 SCC 56: (2007) 3 SCC (Cri) 304 (vide SCC p.64, para 13) and New India Insurance Co. V. Darshana Devi (2008) 7 SCC 416: (2008) 3 SCC (Cri) 98 (vide SCC p. 424, para 21) etc. We have some reservations about the correctness of the aforesaid decisions of this Court.” 7.Hence, we direct that the papers of this case be placed before the Hon’ble the Chief Justice of India for constituting a larger Bench to decide the following questions: “(1) If an insurance company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle?. 3 (2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none?. 8. The law that the Insurance Company can be asked to satisfy the award has as yet not been changed. Judgments of the Supreme Court on this point still hold the field.” (P. 29) I also find on the decision of FAO. No. 444 of 2008 decided on 18th December, 2008 that a direction can be issued to the Insurance Company to deposit the amount in question before recovering it from the owner. 3. Adverting to question No.2, the law is already well settled. (See: Sita Ram V. Satvinder Singh and another, 2008 HLJ 1110) The question is decided accordingly. In this view of the matter, it is but obvious that the appellant-Insurance Company will be entitled to refund of the interest amount which has been deposited from the date of accident and will be liable only to deposit the interest after thirty days of the date of accident. So far as question No.1 is concerned, there are no pleadings of proof before the Commissioner. This appeal is accordingly disposed of. (Dev Darshan Sud), Judge. May 4, 2011(R)