IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT SSLASPUR MISC. APPEAL fCI N0. MISC. APPEAL UNDER SECTION 173 OF THE MOTQR VEHICLES ACT. 1988 APPELLANT V£'}C ...%^ ^<:^-^^y ^y^' The New India Assurance Company Limited, through - Divisional Managcr the New India Assurance Company Limited, Bilaspur, 2nd Ploor, Rama Trade Centre, Opposite- Rajeev Plaza, Bus Stand, Bilaspur [C.G.]. VERSUS RESPONDENTS CLAIMANTJ" iWNER RIVER 1. Madan Singh Gond S/o Ramdayal Gond, aged about 40 years, 2. Mahesh Singh Gond, S/o Madan Singh Gond, aged about 17 years. 3. Ramesh Singh Gond, S/o Madan Singh Gond, aged about 14 years. Respondent No. 2 8s 3 being minor represented through father Madan Singh (respondent No. 1) All R/o village Rani Bachhali, P.S. Ratanpur, Tahsil Kota, District Bilaspur (C.G.). 4. Smt. Krishnakali Tiwari @ Krishna Tiwari w/o Shri Brijnarayan Tiwari, R/o village Nibhi Bhayriyan, post Gangew, District Rewa (M.P.) (Recfistered owner ofthe vehicle) 5. Shri Ramdulare Tripathi, R/o village 8s Post Sursadh, District Rewa (M.P.) 6. Ganesh Lal son of Late Shankar Lal, aged about 22 years, R/o village Kasturi, P.S. Rajendra Gram Anuppur, District Shahdol (M.P.) CLAIM IN APPEAL VALUED AT RS. 3,95,000/: Being aggrieved by the award dated 09.12.2009 passed by 1st Additional Motor Accident Claims Tribunal, r^' ^ HIQH COURT OF CHHA.VItSQSSH, AT S1LAEVVR M. A. (Cl »0.235 QF 2010 APPELLANT Vs. RBSPONDBNTS The New ludia Assuxance Conipauy Limited. Madau. SIagh Goiid aad Otfaers APPEAL UNDER SECTION 173 OFTHE MOTOR VEHICtES ACT. 1988 DB: Hon'bte Sluri I. M. Quddusi & Hon'Me Shri G. Mtahajnddto, JJ. PTRSp-nt.: S1iri SonrabTi Sharma, Advocate for the appBTIant. Noae &r thc respondents. ORALOiaWR (Passed on 07ta day of September, 2011) Per I. fil. Quddusi, J. This appeal has been filed by the appellaut-the tfew India Assufaace Coiapauy LiButed agaiust the iinpugaed award dated 09-12-2009, passed by the First Addltional Motor Ac-cMlent Claitas Tiibiiual, BUaspiu' (for shost the Claiais Tribuual:) ia Claim Case No, 177/2008, ia so far aa it seSe^esto fhe dlrectiou to fhe appenant/Insurauuce Coiapaay to pay coiuipensatioa to the clauuauts aad reoover tlie same fixfaa. fhe •driver aad owaer. 2. Brief facts of fhe case as per version of the clalmants aji-e that on 13-10-2008 at 6.00 a.ui., deceased Naubai, nesideut of VlU^e Harai, P.S. Amarkantak was golug to take water fbom tap situated on the road sale betweeu Amarkantak Rajendi'^ram. On i^turiimg froin tap to her resideuce, one Matador bearing registration No. M.P. 17/9836 which was being driveu by non-applicaat No. 1 ia a rash aud .ae^igeut ^^&";t^ ^eE !®-~^ 1»'- ^.—-—-^ '% ^ "•& manner, daslied Naabai as a nesult of which ahe sustaiaed grievous uyiuies aud has died on the spot Report of the iacideat was given iu fhe Police Station, Amai'kaBtak aad aa offence No.84/2008 has been registered uuder Secttons 279, 337 and 304-A of IPC. At the time of accidcut she was earaMig Rs.5000/- per mouth as a labourer. 3. The claimants belag legal helrs ofthe deceased have flled a claiin petition iiuder Sectioa 166 ofthe Motor Vehictea Act, 1988 (f&r shoit 'the Acf) claimiug a total amouat of corupeusation to fhc tuae ofRs. 12,50,000/-. 4. Leacaed Claims Tribiuial on a close scrutluy of the evidence led, material placed aud submissions uiade by both fhe parties, awarded a total c'ompeusation of Rs.3,95,000/- alon^ with luterest at the rate of 7% per anmim, boldiag that the applicant/ lusurauce Coiapany has been dlrected to pay the amount of conipensatioa to the claimaata and ttiei'eafter, It shaU recover fhe sanie from the driver and cwner of the velucle. 5. We have heard learned coiuisel appearing for the parties aad perused fhe recond ofthe Clauns Tribunal. 6. lu flie case of JV<titon«dInsurantse Co. Xdd. vs. Swafan Sbigh and Otfteras reported in (SW04) 3 3CC 297, the Hou'ble Apex Court bas heM in a case of a fhird party accjktent tbe liabUUy of the insuraace compauy to satisfy the decree at the first instance aad to reoover fhe awarded. ainouut from fhe owner pr driver fhereof bas beeu holdiag fhe field for a loug tuae. It is a weU-setUed rule of lam and should uot oidtoarily be deviated froni. F'urtb.er it baa beeu directed that 'Where on ^o 3^i?r;;l-sss'";iih^Si^^^ '^^i^l^S^ss^st^,^^^^ i^-'-^SK •S-. adjudication of thc claua under the Act t&e Tribunal arrives at a conclusion that tlie insurer has satisfactority prcwed its defeace ia accordaace witti the provisions of Section 149(2) read wifh. sub-section (7), as iuterpreted by ftiis Court above, fhe Tribuual cau direct fhat fh.e iasurer is Uable to be reimbursed toy the insured for the compensatioji and other amouats which it bas beea coiapelted to pay to the ttiird party uuder the award of the Tribunal. Such determjtaatkwi of cteim by theTribuual wiU be enforceable and the mouey found due to the insurer fboxu fhe insiired wlU be recoverable ou a certificate issued t>y fhe Tfibunal to fhe CoUector la the same iaaaner under Section 174 of the Act as arrears of tend wvemiis. Tbe certlflcate wlU be issued for the iscovery as arrears of laad revenue oaly if, as required by sub-section(3) of Sectiou 168 of the Act the insured feuls to deposit the auaoiiBt awarded u favour of the insurer withia tturty days froiu the date of aiuiouncemeut of tbe award by the Trft>ujaal. 7. But iu a receut decisiou, JVuttoncil J'nsuraaoe G».£td. versus Pwvathneni a»Mt AnoUier, (2009) 8 SCC 78S, Hon'ble Supreiue Court whlte cousMering fhe issue ttuat whcu a pei-sou has no Uabilily to pay at all how can it be coin.pelled .to pay? has observed fhat it may take yeara fof fhe Insurance Coxajpiaay to necover fhe amount fi-ojaa tfae owuer of the vehicle, aud it is also possibk that for soiue reason (he recoveiy may not be possible at afl. The appeal iu questkia Iias been referred to fhe larger Bench to decMe the foUowing question: u(l) Ifan Insuraace Compaay caa piscwe fhat it does not havc any Uabflily to pay aay ainount ia law to the claimante under tfae Motor Vehicles Act or any other enactment, iB ^l^ caa the Court yet coxnpel tt to pay the amount in question gmng it Uber^ to later on recover the saine from fhe owacr of fh.c vehicle? (2) Can such a diTcctfoa be gnren ziuder Artfcle 142 ofthe Constitution, and what is ' fhe scope of Ardcle 142? Does Article 142 permit the Court to create a liabitily whCTC thcrc is noscy 8. Learned couasel fof fhe appellaut haa also ptoced neUance on a decjsioa in Orientul Jnsanuuw Co. Ud. •».No^afpem. *ind others, 2004 ASt SCW 95.3, iu wliich, the foUcwmg dlrectton tias beeu givea ia paj.~a 8 :- 'Therefore, white settiag aside the judgutent of fhe High Court we direct ia terias ofwhat has been steted in Baljjtt Kaur's case (supra) fhat fhe iasurer shaU. pay the quaatum of compensation fixed by fhe TrSbwaaS, about whlch there was ao dispute raised, to fhe respoiidents-claimaats within thrce aiouths froin today. For the purpose of reccweriug the same fi-om fhe iasured, fhe insuier shaU not be required to fSSs a siut It luay iuitlate a proceediug before the concemed Executing Court as jf the dispute between the iasurer and the owner was the subject inatter of determiuation before thc Tribunal and the issue is decjded a^inst the owner and lu favour of the insurer. Before retease of the amouut to the iasured, owner of &e vchicle shaU be ^sued a notice and hc shaU be required to furnish securily for the eatire amouut which fhe lasurer wlU pay to fhie claimants. The ofiTending vehicle shaU be attached, as a part of fhe security. If necessjly arises fhe Executkig Cout shall teike assistance of'the concerned Regioxtal %s ~v ^^•^s^. 'f-^fg^^'-^ ^ Transport authorily. The Executiag Coart shall pass appropriate orders ia accordance wlfh law as to the aianner In whfch fhe insured, owucr of the vehicle shaU caake payiuent to the insufer. In case theie is auy default it shaU be opeu to the BxecutJng Court to direct realizatuu by disposal of the securities to be furrLfahed or from aay ofher propei-ty or properties of fbe owner of fhe vehicte, the insured. The appeal is disposed ofin fhe aforesaid terms, with no oinler as to costs." 9. Ia view of the directk»ns and observations giyea by the Hon'ble Suprejne Coiut ia the aforesaid decisions, the appeat is disposed ofiu fhe aforesaid terxns that fhe appeUant/IasuraiGe Company shall pay aud recover frorn fhie diwer and owner, as has been dinected by fhe Tribunal. No oxder as to ooste. SA'- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge tes