HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 28 of 2004 Reserved on: 4.6.2009 Decided on: 18.6.2009 New India Assurance Company ………Appellant. Versus Meena Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Sanjeev Sood, vice Mr.K.D. Sood, Advocate. For respondents No.1 to 4: Mr.R.P. Singh, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant/Insurance Company against the award passed by the learned Motor Accident Claims Tribunal, Una, (here-in-after referred to as the learned Tribunal) on 6.10.2003, vide which a sum of Rs.3,16,000/- was awarded as compensation in favour of the claimants i.e. respondents No.1 to 4, to be paid by the appellant. This judgment shall also dispose of Cross Objections No.152 of 2004 filed by the claimants/respondents No.1 to 4 for enhancement of compensation. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that the claimants/respondents No.1 to 4 filed a claim petition under Section 166 of the Motor Vehicles Act before the learned Tribunal in which the driver Narinder singh was impleaded as respondent No.1, while owners were impleaded as respondents No.3 and 4 (respondents No.6 & 7 herein) and the Insurance Company was impleaded as respondent No.4. The petition was filed by the claimants for the grant of compensation on account of death of one Sanjeev Kumar, who died in an accident on 7.10.2001. The accident took place with a Tractor being driven by Narinder Singh, respondent No.1 in the claim petition, in a rash and negligent manner and accordingly the compensation was claimed by the claimants, who were the widow, daughter, mother and father of the deceased. The age of the deceased was alleged as 24 years and his income was alleged as Rs.7,000/- per month. The learned Tribunal tried the petition and allowed the same by awarding a compensation to the extent of Rs.3,16,000/- and it was mentioned that respondents No.1 to 4 shall be vicariously liable to pay the amount of compensation to the petitioner, but respondent No.4 i.e. the Insurance Company/appellant was held liable to indemnify the amount of compensation. Being aggrieved by the award passed by the learned Tribunal directing the appellant/Insurance Company to indemnify the amount of compensation, the present appeal has been preferred by the Insurance Company. - 3 - I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant/Insurance Company were that the learned Tribunal has clearly held in paragraph 19 of its award that the Insurance Company cannot be fastened with the liability since the Driver had deposed that he was not holding a driving license at the time of accident. However, it was submitted that inspite of the said findings, the learned Tribunal had directed the Insurance Company to indemnify the amount of compensation, but no order has been passed that the Insurance Company was entitled to recover this amount from the owners/driver i.e. respondents No.1 to 3 and therefore, the appeal deserves to be allowed. On the other hand, the learned counsel for the claimants/respondents No.1 to 4 had submitted that the learned Tribunal had assessed the compensation as if the deceased was a labourer, though it was alleged that the deceased was a driver and, therefore, his income should have been assessed as a driver. He, therefore, submitted that the application under Order 41 Rule 27 of the Code of Civil Procedure was filed by the respondents No.1 to 4 before this Court, which was registered as CMP No.432 of 2004, alleging therein that the deceased was a license holder and his driving license and the verification given is sought to be proved that he was working as a Driver and was earning Rs.7,000/- per month. However, the learned counsel for the claimants submitted that in case the matter - 4 - had to be remanded to the learned Tribunal for proving in evidence the said license or the other particulars to prove the income of the deceased, he will not press this application which be dismissed accordingly. Keeping in view these submissions and the fact that the allowing of the application will entail fresh trial of the case and the case may have to be remanded to the learned trial Court for taking evidence for assessing the income of the deceased, the learned counsel for the claimants had not pressed this application and accordingly, the same is dismissed. Consequently cross objections filed by the claimants are also dismissed since there is no material on record for enhancement of compensation awarded by the learned Tribunal. However, there is substance in the plea raised by the learned counsel for the appellant that once the learned Tribunal had itself given findings, as mentioned above, that the Insurance Company was not liable, while directing the Insurance Company to deposit the amount, it should have mentioned that the Insurance Company shall be entitled to recover the amount from the owners. A reference can be made to the decision of the Apex Court in New India Assurance Company versus Kamla and others, AIR 2001 Supreme Court 1419, wherein it was observed that the Insurance Company should be made statutorily liable to pay compensation to third parties but it can recover from insured vehicle owner the amount paid to third parties. This decision is of the year 2001 and it - 5 - appears that it was not either brought to the notice of the learned Tribunal or the learned Tribunal, while deciding the case on 6.10.2003, failed to take notice of this decision. The Apex Court had again affirmed the said findings in United India Insurance Company versus Lehru and others, AIR 2003 Supreme Court 1292 that the Insurance Company on proof that owner of vehicle was aware of fact that license was fake, can however, recover the amount from the insured. In view of the aforesaid discussion, the appeal filed by the Insurance Company is allowed to this extent that the final order shall be read as under. The Insurance Company/appellant shall be liable to indemnify the claimants and shall deposit the amount in full alognwith interest and costs and thereafter, the Insurance Company/appellant shall be entitled to recover the amount from the owners in accordance with law. The appeal is allowed and cross objections are dismissed. There is no order as to costs. June 18, 2009. (V.K. Ahuja), (TILAK) Judge.