c^ .^'- IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (C) No.- y^ ^-^009(D.B.) APPELLANT R.R^a-;-;';.AriB^ft^"u ^•^^s'",.^.^.^' THE ORIENTAL INSURANCE COMPANY LIMITED, THROUGH DIVISIONAL MANAGER, DIVISION OFFICE- PARAMANAND BHAWAN, RAJENDRA PARK CHOWK, DURG, TAHSIL & DISTRICT - DURG (C.G.) Vrs. RESPONDENTS/CLAIMANTS :- :-1. SMT. SHASHI DEVI WD/0 LATE JITENDRA SHARMA, RESIDENT OF GUDHIYARI, THANA - RANCHIRAI, TAHSIL - PATAN, DISTRICT - DURG PRESENT ADDRESS - WARD N<- -10, CHIKHALI, RAJNANDGAON, DISTRIC'l - RAJNANDGAON RESPONDENTS/NON-APPLICANTS 2. t- 3. •^ ^ t-. 4. BALIHAR SINGH S/0 IQBAL SINGH RANDHAWA, AGE 35 YRS., RESIDENT OF RILOSA, THANA - GAJRAULA, DISTRICT - PILIBHIT (UTTARPRADESH) KASHMIR SINGH SAHOTA S/0 M. SINGH SAHOTA, RESIDENT OF UPPER CHANDMARI, KOHIMA NAGALAND, PRESENT ADDRESS - S-21, PREETAM VILA, SINDHI REFUSEE COLONY AGREECO JAMSHEDPUR (JHARKHAND) MANILAL SHARMA S/0 BAKHARI PRASAD SHARMA, AGE 70 YRS, RESIDENT OF GUDHIYARI, THANA RANCHIRAI, DISTRICT - DURG, PRESENT ADDRESS - BEHIND OF ROSHAN DUBEY TOWN THANA, POLICE QUATER, RAJNANDGAON DISTRICT - RAJNANDGAON (C.G.) ..2. / ..2.. APPEAL UNDER SECTION 173 OF MOTOR VEmCLE ACT 1988 APPEALVALUED Rs. 6,31,500/- (APPEALBYINSURANCE) tTlfl'a^.Ti-aT.d HIGH COURT OF CHHATnSGARH : BILASPUR M. A. (C) No. 494 of 2011 (^ Appellant Smt. Shashi Devi Versus Respondents Balihar Singh 85 others And M. A. (C) No. 232 of 2009 Appellant The Oriental Insurance Company Ltd. Versus Respondents Smt. Shashi Devi SE others i*f DB: Hon'ble Mr. JiKtice I. M. Quddusi SE Hon'ble Mr. Justice G. Minhajuddin Shri Santosh Yadu, Advocate for the appellant in M.A.(C) No. 494/2011. Shri Sudhir Agarwal, Advocate for the appellant in M.A.(C) No. 232/2009 and for Respondent No.3 in M.A.(C) No. 494/2011. Shri P. R. Patankar, Advocate for the respondent No.l in M.A.(C) No. 232/2009. Q^R DER (Oral) (Passed on this 10th day of May, 2011) Per I. M. Quddusi, J. .The aforementioned both the appeals (M.A.(C) Nos. 494/2011 and 232/2009), one by the claimant for enhancement and other by the Insurance Company against the order of pay and recover, are being decided by this common order as they arise from one and the saine award dated 30.12.2008, passed by the First Additional Motor Accident Claims Tribunal, Durg-in Claim Case No. 14/2007. We have heard learned counsel appearing for the parties and perused the lower Court record. Brief facts, in nutshell are that on 24.6.2007 deceased Jitendra Sharina along with his brother-in-law Anil Kumar Dubey was going to Durg from Rajnandgaon on fhe motorcycle - Bajaj C.T. 100 bearing (g> i?' -^ registratfdn No. C.G. 08/F 1067. On theway, at about 13.30 hours in the noon, as soon as their motorcycle reached near village - Manki on the G. E. Road, the offending vehicle - Trailer, bearing registration No. N. L. Ol-D/3224, which was being driven in a rash and negligent manner by the non-applicant No. 1 ( Balihar Singh) hit the motorcycle. In that accident head of Jitendra Sharma got crushed and he died on the spot. The matter was reported in the Police Station- Somani, District Rajnandgaon where offence unde'r Section 304-A of the I.P.C. was registered against the driver of the Trailer at Crime No. 160/07. At the relevant time the vehicle was owned by the Non-applicantNo.2 and it was insured with the non-applicant No. 3. The widow of the deceased iiled the claim case under Section 166 of the Motor Vehicles Act, 1988 for award of compensation, wherein the father of the deceased was arrayed as non-applicant No.4 (Manilal Sharma). Learned Claims Tribunal having regard to the facts situation and the evidence on record, awarded a total sum of Rs. 6,31,500/- as compensation to the claimant (widow of the .deceased) and non- applicant No.4 (father of the deceased) in the ratio of 80:20, along with simple interest at the rate of 6% per annum, holding the owner and driver as liable to pay the amiount of compensation. However, it has been directed by the Claims Tribunal that at the first instance the award would be satisfied by the Insurance Company and then it niay recover from the owner and driver of the offending vehicle. Further, it has been directed that in default of deposit of the money within two months from the date of the award, the amount of corapensation shall carry penal interest at the rate of 9% per annura. ^-was^ 'K^:x% E sy 7. Pirst of all we are considering the M.A.(C) No. 494 of 2011, filed by the claimant for enhancement of the award. On perusal of the papers available on record it is evident that there is certificate (Ex.P/12) filed by the clainiant regarding salaiy of the deceased which he was receiving. The deceased was an employee, working as Production Supervisor in the Indian Organic Fertilizer Industries, Rajnandgaon and was getting salary as Rs. 7000/- per month. Copies of the expenses/payment voucher have also been filed as Exhibit P/13 and P/14, which were proved by the •Accountant of the company namely v Indra Kumar Sonkar (A.W.3) but he has stated that soraetimes the salary was deducted in case of absence from duties of the concemed employee. But the Tribunal has treated the raonthly salary of the deceased as Rs. 4,500/- without any basis. Therefore, we are of the opinion that the monthly salaiy of the deceased was Rs. 7000/- per month and thus the annual salaiy comes to Rs. 84,000/-. But ifit is presumed that there would have some absence from duty in a year which lead to deduction of sorae amount from the salary, therefore, we deduct Rs. 10,000/- for the same and thus the annual income of the deceased is assessed as Rs. 74,000/-. After deducting l/3rd for personal and living expenses the reniainder conies to Rs. 49,333/-. Since the deceased was aged about 29 years and was married, according to the decision of Hon'ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another1 the multiplier of 17 would be applicable. Therefore, the total loss of dependency comes to Rs. 8,38,661/-. Besides this, the claimant as well as non-applicant No.4 would be entitled to get Rs. 5000/- each towards loss of consortium (total Rs. l0,000/-) and loss of love and (2009)68cc 121 @ affection, Rs. 5000/- towards funeral expenses and Rs. 5000/- towards loss of estate and thus under other heads they are entitled to get Rs. 20,000/-. After adding this amount awarded under the conventional heads the total compensation comes to Rs. 8,58,661/-. Accordingly, we enhance the total amount of compensation as Rs. 8,58,661/- along with simple interest @ 6% per annum from the date of filing of the claim pedtion till its payment. However, we set aside the portion of the award, whereby penal interest at the rate of ,9% per annum was granted in casc of default of payment of amount of compensation within two months. 8. Accordingly, the M.A.(C) No. 494 of 2011, filed by the claimant for enhancement of the award is allowed to the above extent. 9. With regard to the challenge of Insurance Company in M.A.(C). No. 232/2009 on the question of pay and recover, we have further heard learned counsel appearing for the pardes. 10. In the case of National Insurance Company Vs. Swarn Singh & others2 Hon'ble Apex Court has held that in a case of a third-party accident the liability ofthe insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long dme. 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 fhat the insurer is liable to be reimbursed by the insured for the compensation and other amounts (2004) 3 SCC 297 ^ ^ ^ 11 12. 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 cerdficate 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 another3, Hon'ble Supreme Court while making an observation 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 ainount 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 appelldnt has also placed reliance on a decision in Oriental Insurauce Co. Ltd. vs. Nanjappan and others4, in which the following direcdon has been given in para -8 : " Therefore, while setting aside the judgment of the High Court we . direct in terras of what has been stated in Baljit Kaur's case 3 (2009) 8 SCC 785 42004AIR SCW952 13. 14. (supra) that the insurer shall pay the' quantum of compensation fixed 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 fayour of the insurer. Before release of the amount to the insured, owner of 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 concemed 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 HonTale Supreme Court in the a&resaid decisions, the appeal (M.A.(C) No.232/2009) 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. In the result the M.A.(C) No. 494/2.011 is allowed in part and M.A.(C) No. 232/2009 stands disposed of t6 the above extent. No order as to costs. __. - ^-^ Sd^- l.M.Quddua Judge G.^ l^e Tbakur