i-"I ,LED ® riCTfe INTHE HON'BLEHIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL rcyNO?-?^-72008 APPELLANT INSURER ^..^ ICICI Lombard General Insurance Co. Ltd., ICICI Towers, Bandra KurlaComplex, Bandra (East) Mumbai, Through it's Legal Manager, V. R. Plaza, Bilaspur Chhattisgarh VERSUS RESPONDENTS CLAIMANTS ^^.•'•'::^ ^ A-"" (_ 1. Smt. Jiwan Bai W/o Late Shri Ghasiram Aged about 38 years, 2. Kaushilya Bai, D/o Late Shri t. Ghasiram, aged about 19 years 3. Manoj Kumar, S/o Late Shri Ghasiram, aged about 18 years 4. Sapat Singh, S/o Late Shri Nandlal, aged about 72 years All above resident of village Sirki, Chowki Dipka, Thana Hardi Bazar, Gram Panchayat Tivrata, District Korba, Chhattisgarh ^ 6. Ram Narayan, S/o Shri Maujilal Shrivas, age not known to the appellant, resident of Priyadarshita Associate, Rajiv Plaza, Bus Stand, Tehsil and District Bilaspur, Chhattisgarh [DRIVER] Vijay Pratap Singh, S/o Shri Shivaji Singh, age not known to the petitioner, resident of A- 21, Songanga Avasiya Parisar, Bilaspur, Tehsil and District Bilaspur, Chhattisgarh [VEHICLE OWNER] Amtito Das, Advocate |m Ini fm |m \ ^ —^- HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (Q No. 274 of 2008 Appellant ICICI Lombard General Insurance Co. Ltd. Versus Respondents Smt. Jiwan Bai 85 others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Manindra Mohan Shrivastava, JJ Shri Amrito Das, Advocate for the appellant. Shri Goutam Khetrapal, Advocate for the respondents No. 1 to 4. None for the respondent No.5. Shri Prashant Gupta, Advocate for the respondent No.6. ORDER (Oral) ( Passed on this 2nd day of May, 2011) Per I. M. Quddusi J. The instant appeal, filed by the appellant Insurance Company, arises from the award dated 28th November, 2007, passed by the 9th Additional Motor Accident Claims Tribunal (FTC), Bilaspur in Claim Case No. 48/2006. The facts, in brief, are that on 26.7.2006 at about 5.00 p.m. in the evening deceased Ghansiram was going on his motorcycle, bearing registration No. C.G. 12A/7654 to village Dipika from village Rainpur. On the way the truck/trailer, bearing registration No. C.G. 10- C/0534, which was being driven in a rash and negligent manner by the non-applicant No.l (Ram Narayan), came from the opposite direction and hit the motorcycle. As a result of this accident Ghansiram died on the spot. The legal heirs of the deceased filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 25,50,OOO/- under various heads. Learned Tribunal, having ^\ ^regard to the facts and circumstances and the evidence on record, granted a total compensation of Rs. 12,78,072/- along with interest at the rate of 6% per annum from the date of the application, holding that the non-applicants No. 1 and 2 (driver and owner) are liable to pay the amount of compensation. However, it has been directed by learned Tribunal that at the first instance the amount of compensation shall be paid by the non-applicant No.S/Insurance Company and then it shall recover from the non-applicant No.2 (owner). We have heard learned counsel appearing for the appellant and perused the record. The main thrust of the appellant is that when learned Tribunal has held that the Insurance Company is not liable to pay the amount of compensation, the direction to pay and recover from the non-applicant No.2 is not sustainable. In the case of National Insurance Company Vs. Swarn Singh & others1 Hon'ble Apex Court has held that in a case of a third-party accident the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereofhas been holding the field for a long time. It is a well-settled rule of law and should not ordinarily be deviated from. Further it has been directed that Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reirabursed by the insured for the compensation and other amounts ' (2004) 3 SCC 297 \ ^'w£S^^s /£ \ '^-^ "":..'^x^^ 8. which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal." But in a recent decision, National Insurance Co, Ltd. vs. Parvathneni and another2, Hon'ble Supreme Court while making an observration that when a person has no liability to pay at all how can it be compelled to pay ? It may take years for the Insurance Company to recover the amount from the owner of the vehicle and it is also possible that for some reason the recovery may not be possible at all. The appeal in question has been referred to the larger Bench to decide the following question : "(l) 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 ? (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 ? " Learned counsel or the appellant has also placed reliance on a decision in Oriental Insurance Co. Ltd. vs. Nanjappan and others3, in which the following direction has been given in para -8 : 2 (2009) 8 SCC 785 3 2004 AIR SCW952 (< Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fbced by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, ownerof the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer. will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs. In view of the directions and observations given by the Hon'ble Supreme Court in the aforesaid decisions, the appeal is disposed of in the aforesaid terms that the appellant/Insurance Company shall pay and recover from the owner, as has been directed by the Tribunal. No order as to costs. Thakur Sd/- LM.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge