/^ c .<^3' '^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MisceUanepus Appeal {C} No./^ /2009 AEPELLANT ^ ^"Bajaj Allianz General Insurance Company Limited, Shiv Mohan Bhavan, Vidhan Sabha Road, Pandri, Raipur (C.G.) VERSUS RBSPONDENTS ^ oc^U / Smt- chaiti Bai w/o Indrajeet aged about .^y^V 36years, 7 ^fy^« ....-"^^^'^ •••^^" ^ ^:^^^-' 'yy' r' Indrajeet Bhaina S/o Itwari Ram Bhaina aged about 40 years, Both R/o Village Muktaraja, Thana Baradwar, Tahsil Sakti, District Janjgir-Champa (C.G.) {Clainiants} Munna @ Krishna Kumar Kurrey S/o Mohanlal Kurrey R/o Village Muktaraja, Thana Baradwar, Tahsil Sakti, District Janjgir-Champa (C.G.) {Driver} Vinod Kumar Khande S/o Kaliram Khande, R/o Village Muktaraja, Thana Baradwar, Tahsil Sakti, District Janjgir- Champa (C.G.) {Owner} MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 ^'.' 7 i^ ^3^ fl@%^r^ 1 STSS@?3 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE IVIR. G. MINHAJUDDIN. JJ. Appellant Respondents M.A. Fd No. 1453/2009 ^ Vs Bajaj Allianz General Insurance Company Limited, Raipur (CG) Smt. Chaiti Bai and others Present: Mr. SS Rajput, counsel for the appellant/insurance company. Mr. V.K. Janardan, counsel for respondents No. 1 & 2. Mr. Vimlesh Bajpai and Mr. Deepak Kumar Singh, counsel for respondents No. 3 & 4. ORDER (Oral) (13th September, 2011) Per I.M. Quddusi. J; 1. This appeal has been filed by the appellant/insurance company against the award of the Additional Motor Accident Claims Tribunal, Sakti, Distt. Janjgir-Champa (in Short "the Tribunal") dated 3rd September, 2009 passed in Claim Case No.42/08 insofar as it relates to the direction to the appellanVinsurance company to pay the amount of compensation to the claimants and recover the same from the owner and driver of the vehicle. 2. Brief facts of the case are that on 25.5.2008 respondent No.3 drove the vehicle Swaraj Tractor bearing registration No.C.G. 11 ZG 3452 near Sonnadi, Village - Chirda, in a rash and negligent manner, as a result of which Jageshwar Prasad, who was sitting in the tractor, fell down from the tractor and died on the spot on being crushed over by the tractor. At the time of accident, the deceased was 18 years and was earning Rs.200/- per day. Report of the accident was lodged against respondent No.3 in Police Station - Baradwar, whereupon Cr.No. 139/08 was registered against him and after completing investigation, charge sheet was filed against him in the concerned Court. ^w^ A y^ ^ m^^Sh i?%SI^| j JJ ,...^y ^ 3. The claimants, who are parents of the deceased, being his legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") claiming compensation of Rs.46,14,000/- for the death of Jageshwar Prasad under various heads. 4. However, learned Tribunal, after close scrutiny ofthe evidence, oral and documentary, led by the parties, awarded a total compensation of Rs.3,96,000/- by fastening the liability upon the owner and driver of the vehicle. However, the appellant/insurance company has been directed to pay the amount of compensation to the claimants at the first instance and thereafter recover the same from the owner and driver of the vehicle. 5. Heard learned counsel for the parties, perused the lower court record (LCR) as well as the impugned award. 6. Learned counsel for the appellant/insurance company has submitted that there was breach of conditions of the insurance policy as there was only one seat in the tractor available for the driver and no other seat was availabte, and the deceased was trying to get inside the tractor when he fell down and was crushed, over by the rear wheel of the tractor. It is not the obligation of the insurance company to pay the amount of compensation when there was clear breach of conditions of insurance policy. Hence, the insurance company was not liable fo pay compensation to the claimants and the direction by the Tribunal to pay the amount of compensation to the claimant and then recover the same from the owner and driver of the vehicle is not sustainable and deserves to be set aside. 7. Reliance has been placed by learned counsel for the appellant/insurance company upon the judgment of the Single Judge of the Madurai Bench of the Madras High Court in the matter of Divisional Manager, New India Assurance Co. Ltd. Dindigul Vs. V. Chandran and another, reported in 2010 (1) TAC 765 (Mad.), wherein discussing the case law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others, AIR 2004 SC 1531, it has been mentioned that the direction given to the concerned Insurance Company in Swaran ,'^r^ ^ •" ^-.•^^^i^.^. 9 i , 'W^ | ^ Singh (supra) case cannot be considered as a precedent, as has been observed by the Larger Bench of the Hon'ble Supreme Court. 8. In the case of Oriental Insurance Co. Ltd. Vs. Zaharulnisha and others, reported in (2008) 12 SCC 385, the Hon'ble Apex Court has exercised the jurisdiction conferred under Article 142 of the Constitution. Therefore, this Court and the learned Court below have no jurisdiction to issue a direction to the insurance company to pay and recover the amount of compensation from the owner/driver where it was a case of 'no licence'. 9. In the matter of Zaharulnisha (supra), in paras 21 & 22, the observations ofthe Hon'ble Supreme Court are liable to be perused, which are reproduced below: "21. In the light of the above settled proposition of law, the appellant Insurance Company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of the scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing a driving licence of driving HMV and he was driving a totally different class of vehicle, which act of his is in violation of Section 10(2) of the MV Act. 22. In the result, the appeal is allowed to the limited extent and it is directed that the appellant Insurance Company though not liable to pay the amount of compensation, but in the nature of this case, it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle viz. Respondent 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the 71 il ^ :^.. judgments of this Court in National Insurance Co. Ltd. V. Baljit Kaur and Deddappa V. National Insurance Co. Ltd." 10. That in the case of National Insurance Co. Ltd. Vs. Parvathneni and another, reported in (2009) 8 SCC 785, the above question regarding "pay and recover" has been referred to the larger bench of the Hon'ble Apex Court for decision. 11.1n view of the above discussion, we are of the opinion that the direction contained in the impugned award to the appellant/insurance company to pay the amount of compensation to the claimants and recover it later on from the owner and driver of the vehicle is not sustainable in the eye of law and deserves to be set aside. 12. In the result, the appeal is allowed. The impugned award so far as it relates to the direction to the appellant/insurance company to pay and recover the amount of compensation from the owner and driver of the vehicle in question, is hereby set aside. The appellanVinsurance company is exonerated from its liability to pay and recover the amount of compensation from the owner and driver of the vehicle. It will be open for the claimants to recover the amount of compensation from the owner and driver of the vehicle. 13. The amount deposited by the appellant/insurance company shall be allowed to be withdrawn by it. However, if the same has been disbursed to the claimants, then it will be open for the appellant/insurance company to recover the same from the owner and driver of the vehicle. 14. No order as to costs. 15. Certified copy as per rules. Sd/- B.M. Quddusi Judge Sd/- G. Minhajuddin Judge l^