IN THE HIGH COURT JUDICATURE AT BILASPUR Misc. Appeal (c) No . -^l OF 200s APPELLANT (Insurer) The Oriental Insurance Company Limited, through fhe Divisional manager Oriental insurance co. Bilaspur. Rama Trade Center Opposite Rajiv Plaza Near Bus Stand Bilaspur (C.G.) llNNINt' Versus RESPONDENTS: Claimant /" ^. ^^.^•y^y y. ^^•y'y ^'^' Driver and Owner ofvehicle No. CG 10 A 5384 ^ 1. Smt. Kush Bai W/o Late Maheshram aged 35 years t-2. Ku. Ranju D/o Late Maheshram aged 17 years ^ ^ 3. Ku. Raniya D/o Late Maheshram aged 15 years. V 4. Ketan Kumar Varma S/o Maheshram aged about 13 years. (Respondent No 2-4 Through mother Kush Bai W/o Maheshram) (All respondents 1 to 4 Resident of Village Umaria P.S. Bilha Disst. Bilaspur - (C.G.)] 5. Lalchand Harinkhede S S/o Gyani Ram R/o Chingrajpara Prabhat Chouk P.8. Sarkajida Bilaspur (C.G.) ; ^ ^"" ^t. w^fff\ APPEAL U/S 173 OF THE MOTOR VEHICLES ACT AGAINST THE AWARD/ORDER DATED 30.06.2007 PASSED BY THE NINTH UPPER MOTOR ACCIDENT CLAIM TRIBUNAL (FAST TRACK) BILASPUR, (C.G.l IN C.T.NO. 131/05 PRESIDING OVER BY SHRI A.K. SINGHAL -.^•^- IN» INB» HIGH COURT OF CHHATHSGARH. BILASPUR DB: HON»BLBI. M. QUDDUSI & HON*BLE G. MINHAJUDDIN, JJ M.AtCI No. 791 OF 2008 APPBLLANT RESPONDBWTS: Oriental Insuraace Coinpany Limited Vs. Ku«hBai &oftiers MISC^LLAWEOUS APPBAL UNDBR 8BCTION 173 OF THB MOTOR VEHICLES ACT. 1988 Preseat: Mr. Abhishek Sinha, counsel for the Appellaat None for the respondents. None for fhe rcspondents. ORAL ORDBR (04.11.2011) Per LM. OUDDU8I. J. 1. List is beiag revised. Case is agam called out. No one appears for fhe respondents despite rcpeated caUs. However, Mr. Abhishek Siolia, leanied counsel for the appeUaat is preseut. Therefore, we are mcliaed to hear him aad proceed exparte agaiast fhe respondents. 2. This two appeal has been filed by titie Insuraace Compaay agaiast the impugaed award dated 30.06.2007 passed by the IX Additional Motor Accident Claims Tribunal, (FTC), Bilaspirr, Chhatdsgarh ia Claim Case Nos. 131/2005 to the extent ofdirection to the appellant tiisuraace Compaay to first pay the amount of compensation to tihie clainiaats and fhen recover tihie same fix>m the owner ofthe vehicle, 3. Brief facts of fhe case as per the version of claimaats are fhat on 11.5,2005 deceased Mahesh Verma aad Ramphal were r-'-i^^i 7 g k 1 J] ^ travelling in Auto bearing Regn.No.C.G.10-A/5384. On fhe way near vflla^e Sonikapara turmng, fhe said Auto which was beiag driven by noii-appUcaiit no. 1 Lalchaad Harmkhede (owner-cum-driver) ia rash and negUgent macm.er tumed tartte, due to which, fhe occupao.t of the vehicle Mahesh Sharma sustaiaed gnevous injiiries and died in Hospital durmg fhe coiirse of treatment. The deceased was aged about 38 years, He was domg agricultural as also carpentry works and was earamg Rs.200/- per day. The claimaats beiag dependents/legal representatives have filed clsdiii petition u/s 166 of fhe Motor Vehicles Act, for the award of a total compensation ofRs,44,40,000/- onvanous heard, 4, The learaed Clamis Tnbunal held fhat fhe vehicle in questfon i,e,, Auto bearing Regn.no,C.G,10-A/5384 inet wifh accident due to which, fhe occupant ofthe said vehicle namely Mahesh Verma died; fhere was breach of conditions of fhe Insurance policy by non-appUcaiitiio. 1 and fhe claixnaats arc entiUed to receive a total compensation of Rs.3,90,000/- from noa- applicant no.l. However, ftie Tribunal has fixed fhe HabiUty oii fhe insurance Compaoy to first pay fhe amount of compensation aad fhen recover fhe said amount fiom fhe owner. S. Leamed counsel for fhe appeUaat has submitted that it is not the obUgation ofthe Insiirance Company to pay the amoimt of compensation especially when fhere was breach of conditions of the Insuraace PoUcy by non-appUcaat No. 1 who was owner cum driver offhe vehicle m question. 6. We have heard learaed counsel for fhe appeUajat aad haye also gone fhrough fhe records offhe Tnbunal, -'^ '•K\'^ ^ 1<» 7. A perasal of fhe Insuraiice Poficy shows fhat tihie vehicle was msured under Package PoHcy for Zone-C Goods Canying Cominercial Vehicle (Motorized 3 wheelers) and the poUcy does not cover canymg passengers ia fhe said vehicle except employees only. The deceased was traveUng as gratuitous passenger io. fhe vehicle canyiiig goods, Therefore, he was not covercd under fhe Policy, Hence, fhe Insurance Company is not liable to pay compensation to fhe claimaats, However, so far as it relates to the direction to fhe appellaat to pay a&d recover, in the case of National Insurance Co. Ltd. Vs. Parvathneni and another, reported in (2009) 8 SCC 785, the above question r^arding "pay and recover" has been referred to fhe larger bench of the Honl3le Apex Court for decision. 8. In view of the above discussion, we are of the oi±iion that fhe direction contained in the impugned award to the appeUant/insurance company to pay fhe amoiint of compensation to the claimants and recover it later on from fhe owner cum driver of fhe vetucle is not sustainable and deserves to be set aside. 9. In fhe result, the appeal is allowed. The unpugned award dated 30.6.2007 so far as it relates to the direction to fhe appellant/insurance company to pay and recover is hereby set aside. The appeUant/insurance company is exofterated from its liabUity to pay and recover tfae ainoiint of compensation from non-applicant no.l. However, it will be open for tJie claimants to recover fhe IINIBil amount of compensation fix>m the owner-cum-driver of the vehicle. 10. The amount deposited by the appeUant/insurance company shall be aUowed to be wifhdi^Lwn by it. However, if the sanie has been disbursed to ftie claimants, then it will be 'open for the appellant/ insurance company to recover fhe same fi^om fhe owner of tlie vehicle. 11, No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ^ Rao ^