-^ "'v IN tHEroN'BLEHIGHCOURTOFCHHJm^ M.A.(C)No.. j^^ '2009 OjvisionBench THE ORIENTAL INSURANCE COMPANY APPELLANT ~^^ ^•:^.'y ,••' 3^ LIMITED, THROUGH, BRANCH MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, GIVIL CIRCLE CAMPUS, OBRIA, DISTRICT - SONBHADRA(UTTER PRADESH) ^w:^..'"' y^"' Vrs. RESPONDENTS/GLAIMANTS •^ ^ :-1. BUDHNI WIDOW OF GANESH RAM, AGEABOUT36VRS.CASTEURAON s^ ^- ^ 2. 3. 4. 9 RAJMANI D/0 IGANESH RAM, AGE ABOUT 20 YRS. CASTE URAON MANJU BAGHEL D/0 GANESH RAM, AGE ABOUT 18 YRS. CASTE URAON SATVANT BAGHEL S/0 GANESH RAM, AGEABOUT 12 YRS.,CASTEURAONy ^, FOR MINOR RESPONDENTS N0.-4i THROUGH NEXT FRIEND SELF MOTHER ffUDHNr WIDOW OF GANESH RAM (RESPONDENT NQ. 1) ALL RESIDENT OF - VILLAGE KAPATBAHARI, THANA AND TAHSIL- SITAPUR,DISTRICT-SARGUJA(C.G.) RESPONDENTS/NON-APPLICANTS:- 5. VRISHBHAN AGRAWAL S/Q LATE THANDI RAM AGRAWAL, RESIDENT OBRA, NEAR TO RAM MANDIR, THANA OBRA, DISTRICT-SONBHADRA(UTTER PRADESH), DH. PU. ROAD, CONSTRUCTION PLANT BISHUNPUR, SITAPUR THANA ,SITAP^R, DISTRICT SARG,UJA (C.G.) 6. SHYAM SUNDER PATEL S/0 RAMGULAM PATEL AGE ABOUT 25 YEARS, OPERATOR, J.C.B. POCKLEN, RESIDENT RANI THANA BHAGWANPUR, DISTRICT - GADWA (JHARKHAND) .•A»« IIil ua r .\^ ••Ae» APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 -]"^ T irx T TT-r^T^ TT» HIC8H CGURT OF CHHATTISOARH AT BHASCTm M.A. fCI N0. 1105 OF 2009 APPELLANT R^PQNDBNinS The Oriental iiisurance Company Lunited. Versus Budhiu aadpthers. APPBftLUNDBR ^ -^- Divtsion BencIi;Hontble Sfari I.M. Oudduai & Hoa^bleSfariG.Mttt^ahiddia.AX. Presents Shri Sudhir Agrawal, counsel fbr the appeUant Sliri R.R. Soni, couiisel for clalmaats/ Respondents Nb. 1 to 3. OIEALORDER (Passed oa 30th dayofJune, 2011) Per LM. Quddusi, J. This appeal has beeri filed by the appellant-the Oriental'Insiirance Company agaiiist tlie impugiied award dated 06-03-2009 passed by First Additional Motor Aceident Clauns Tribuiial, ABibikapm', District Sai^uja (for short the Glaims Tribimal) in Claim Case No.45/2006 iiisofar as it relates to the direction to fhe appellaiit/insuraiiee company to pay compensatiori to fhe claimaiits aild tliereafter, i-ecover it fi'om tlie owner of tlie veliicle in questiofl, while exoneratiiig tlie appeUaiit/lasuraiice Coaipaay. 3. Brief facts of the case are fhat on 28-02-2006 at 17.30 houi's, ^eceased Ganeslit'aiBi was going by driving fais Lmia fi-om Sltapui' to Kapatbalii'l. Near Bamlaya Poprel Nala, he was dashed by PoKUn Excavatof Maclaifie beariag No. BEML/220 (for sbort 'tiie Macliine') due to rash and negligent drjvii^ of the diwer of fhe Macliijai6^ ais f/s^ i ;%, w L' ^- a result of which he sustamed grievoys injuries in flie accident. He was taken to the Hospital at Sitapur, where he died diu'ing course oftreatment. 4. The claunaiits beuig legal representative of the deceased had flled a pefitlon under Sectlon 166 of tlie Motor Vel'ucles Act (for shoit the Act?) before the Tribunal claiming a total amount of compensatlon of Rs.20,00,000/- for ti-ie death ofthe deceased. 5. The learned Tribunal on a close scrutmy ofevidence led, material placed and submtssions niade by flie parties, has awarded a total sum of Rs.6,63,128/- along wifh uiterest @ 9% per aiinum from the date of applicatlon and held tiiat tlie Insurance Company shall pay flie compensation to ttie claimaiits at fu'st and thereafter, it caii recover ftie same from fhe owner and driver of tlie Ma^une. 6. We have heard learned counsel appearlng for tfae parties and perused tlie record of fhe Claims Tribmial concerned. 7. The maui thrust of the appellant is fhat when learned Claims Tribunal has held that the Insuraiice Compaay is not Uable to pay the amount of compensation, tlie direcUon to pay and recover the amount of comperisation from the non-applicant Np.2 (owner) is not sustainable. 8. Iii tl case of JWatiomarf Jnsuranc?e Co< I^dL vs. Swarctn Singh cmcf Otfcers; reporled m (2004) 3 SCC 297, HonTale tlie Apex Court held ui a case of thii'd pai'ty accident flie Uability ofthe insuraiice company to satisfy the decree at tlie fu-st inistaiice and to recover ttie awarded ainouat fi'om fhe owner or driver ftiereof has been holding the field for a long Ume. It is awell settled rule oflawaiid should not ordlnarUy be deviated fi'om.. Fuitlier it has p-ip-T- f. been directed tliat Where on adjudication of the claim under tlie Act the Tribmial aiTives at a conclusion that ftie insurer has satisfactorily proved its defence in accordaiice witli tiie provisions of Section 149(2) read witli sub-section (7), as interpreted by fliis Couil above, flie Trlburial caii direct that tiie insurer 1s Uable to be reiiiibursed by tiie uisui-ed for tiie compensation aiid otl'ier ai'nouiits wl-ju.ch it has been compelled to pay to the tiiird p'arty iinder the awai'd of the Tribunal. Such determination of claun by tlie Tribunal wUl be eriforceable and tlie money found due to tlie msui'er from Uie insm'ed wiU be recoverable on a ceitificate issued by tiie Tribuiial to flie Collector in tiie sanie mai-mer under Section 174 of tlie Act as aiTeai's of laiid revenue. The ceitiUcate wUl be issued for the recoveiy as aiTeai's of laiid revenue only if, as requlred by sub- section (3) of Section 168 of the Act the iiisured falls to deposit the aiiioujiit awai'ded in favoui' of tiie iiisui'er witl-uii tl-iu-ty days from tlie date of aiiiiomicement of tiie award by the Tribunal. 9, Bul iii a receiit decisioii, National Insurance Co. Ltd. t^^. Pc^rwjthneni ond Another; i-eported ui (2009) 8 SCC 785, Hon'ble Supreme Couit wliile makiiig an obsei-vation fhat when a person has no liability to pay at all how caii it be compelled to pay? It may take yeai's for the Insm'aiice Compaiiy to recover flie ainount trom. tiie owner of, tlie veliicle aiid it is also possible tiiat for some reason tiie recovery may not be possible at all, the appeal ui question has been referred to tlie larger Bench to decide tlie foUowiiig questions: "(l) tf aa Insui^aiice Compaiiy caii prove fhat it does not have ony Uabllity to pay aiiy aniouiit in law to the clauiiaiits uiider ttie Motor Veliicles Act or aiiy otiier enactaient, caii tlie Court yet compel it to pay tiie ai'nouiit 4 ui questlon giving it libeily to later on recover tlie same from tlie owner of tlie vehlcle. (2) Can such a direction be given under Artlcle 142 of flie Constitution, aiid wliat is the scope of Ai'ticle 142?. Does Ai'ticle 142 permit tlie Coml to create a Uability where tiiere is none?" 10. Leai'ned couiisel for flie appellant has also placed reliaiice 011 a decisioii iii Oriental Insurance Co. i4.cL vs^ Ncwy'appctn cind others; icpoiled ui 2004 AIR SCW 952, m wl-iich, tlie foUowing dii'ection has been given in pai'a 8: 'Therefore, wlille settlng aside tiie judgiiient of tlie Higli Couil we dkect m terms ofwhat has been stated m Baljit Kaur's oase (supra) that tiie insm'er shall pay tlie quai-itum of compensation fixed by tiie Tribuiial, about wlilch there was no dispute raised, to tiie respondents-clalmaiits witliiii fhi-ee monflis from today. For tlie purpose of recovering tlie same from tlie insured, tiie insm'er shall not be reqiiii'ed to file a suit It may iiiitiate a proceediiig before tiie concerned Executmg Coui't as if the dispute between the iiisurer aiid tiie owner was flie subject-matter of determmation before tl'ie Tribiuial and the issue is decided agauist tlie owner aiid iii favoLir of the uisurer. Before release of tlie aniouiit tiie insured, owner of the velilcle shall be issued a notice aiid he shall be requii-ed to fuiTush security for the entire ainount wliich tiie liisiii'er will pay to flie claunaiits. The offending veliicle shall be attached, as a pait of tlie secui'ity. If necessity arises tiie Executuig Court shall take assistance of the concemed ^, (KVT Reglonal Traiispoit Aufliority. The Executiiig Coui't shaU pass approprlate orders m accordance witli law as to tlie maiiner. ia wliich tlie liisui-ed, owner of tiie velilcle shall make payment to the insm'er. In case tliere 1s any default it shall be open to the Executuig Couit to direct realization by disposal of flie securities to be furrilshed or from any oflier property or propeilies of the owner of the vehicle, tiie uisured. The -appeal is disposed of m tlie aforesald terms, witli no order as to costs.?? 11. In view of the dii'ections aiid obseivations given by HonTjle tiie Supreme Court iii tiie aforesaid decisions, tiie appeal is disposed of ui the aforesaid terms that tlie appellaiit/Insui'aiice Compaiiy shall pay aiid recover from the owner, as has been directed by tlie Tribiiaal. No ordei as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge