IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO Nos.359 of 2011 and 360 of 2011. Date of decision: 14.11.2011 1. FAO No.359 of 2011. Branch Manager, United India Insurance Company Limited. … …Appellant Versus Ravinder Singh alias Ravi & Ors. … …Respondents 2. FAO No.360 of 2011. Branch Manager, United India Insurance Company Limited. … …Appellant Versus Ravinder Singh @ Ravi and Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.Harish Bahl, Advocate. For the Respondents: None. Dev Darshan Sud,J. Both these appeals are being disposed of by a common judgment as they involve the same point of law. 2. The learned Tribunal below, while disposing of two petitions, namely, MAC Petition No.53 of 2002, titled: Ravinder Singh alias Ravi and Others vs. Sukh Dev Singh and Others and MAC Petition No.51 of 2002, 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 titled: Ravinder Singh alias Ravi and Others vs. Sukh Dev Singh and Others in which the appellant-Insurance Company was a party, held that the driver of the vehicle was not having a valid and effective driving licence and imposed the liability on the owner Sukh Dev Singh. 3. Adverting to the order passed by this Court on 22.9.2010, learned Tribunal directed the amount to be first paid by the Insurance Company which could be recovered from the owner of the Tanker. The order dated 22.9.2010 reads:- “9. I find on record the statement of attorney of the owner of vehicle, i.e. appellant, per which he had ascertained the particulars of the driving licence of the deceased driver. Insurance Company was supposed to have questioned him, to ascertain those particulars and then to have led evidence, after verifying the records, maintained by the Licensing Authority, on the basis of such particulars. This having not been done, both the cases are remitted to the learned Motor Accident Claims Tribunal, for a limited purpose of re-determining the question of liability of Insurance Company, with the direction to re-summon the attorney of the appellant, who appeared as a witness, to enable the insurance Company to ascertain the particulars of the driving licence from him and then to lead evidence, whether the driver possessed a valid and effective driving licence or not, and thereafter to determine the issue of insurer’s liability 3 to indemnify the insured afresh. While determining such a question afresh, learned Motor Accident Claims Tribunal will not be swayed by the observations, appearing in the awards earlier passed by it, nor shall it take into consideration observations, made hereinabove”. 4. Learned counsel appearing for the appellant- Company urges that the order is not passed in accordance with law since once the liability has been fixed on the owner, the Insurance Company cannot be called upon to satisfy this award. Learned counsel refers to the decision of the Supreme Court in National Insurance Company Limited vs. Parvathneni and Another, (2009)8 SCC 785, holding:- “4. No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle. [See for example National Insurance Co. Ltd. vs. Yellamma (2008) 7 SCC 526, Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 (vide SCC p.104, para 16), Oriental Insurance Co.Ltd. vs. Brij Mohan (2007) 7 SCC 56 (vide SCC p.64, para 13) and New India Insurance Co. vs. Darshana Devi (2008) 7 SCC 416 (vide SCC p.424 para 21), etc.]. We have some reservations about the correctness of the aforesaid decisions of this Court. 5. If the insurance company has no liability to pay at all, then, in our opinion, it can not be compelled by 4 order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. 6. 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. 7. Hence, we direct that the papers of this case be placed before Hon'ble the Chief Justice of India for constituting a larger bench to decide the following questions: "(1) 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 5 Article 142 permit the Court to create a liability where there is none?" (p-786) 5. He submits that since the question is pending final adjudication before the Supreme Court, then in that case it would be in the fitness of things that the liability is satisfied by the owner. 6. I cannot accept this submission made on behalf of the appellant as the case is subjudice before it for a final authoritative pronouncement. 7. In Kusdum Lata & Ors. vs. Satbir and Ors., AIR 2011 SC 1234, the Court holds:- “13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others reported in (2004) 3 SCC 297. 14. The appeal is, therefore, allowed. The judgments of the Tribunal and the High Court are set aside. The insurance company is to pay the aforesaid amount in the form of a bank draft in the name of appellant no.1 with interest as aforesaid within a period of six weeks from date and deposit the same 6 in the Tribunal. This direction should be strictly complied with by the Insurance Company.” (p-1237) 8. Both these appeals are, therefore, dismissed 9. All interim orders are vacated. All miscellaneous applications are disposed of. November 14, 2011. (Dev Darshan Sud) (aks) Judge.