1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR COUNSEL'S NOTE ST. NO. 4334 OF 2010 IN FIRST APPEAL NO. 204 OF 2000 ( Oriental Insurance Co. Ltd. ..vs.. Rambhau s/o Vithoba Chaware and others ) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri D.N. Kukday, Advocate for appellant, Shri V.P. Panpalia, Advocate for respondents 1 to 4. C ORAM : C.L.PANGARKAR, J. DATED : 27th APRIL, 2010. 1. Heard the learned Advocates for the appellant and the respondents. 2. The respondents have moved this application for speaking to minutes. 3. This Court decided the First Appeal No. 204/2000 vide order dated 8th April, 2010. While disposing of the said appeal, it was held by this Court that the present appellant/Insurance Company is not liable to indemnify the owner. In the circumstances, this Court had further directed that if the appellant/Insurance Company has already paid the amount of compensation to the claimant, the Insurance Company may recover the same from the owner. 2 4. The learned Advocate for the respondents submit that the Insurance Company has already deposited the amount in the Court and the same has been invested in the Nationalized Bank in the name of the respondents and the Registry of this Court. He submits that the claimants, therefore, be allowed to withdraw the said amount and Insurance Company, therefore, be directed to recover the same from the owner of the vehicle. 5. Shri Panpalia, the learned Advocate for respondents 1 to 4 submits that such a direction to recover the amount from the owner of the vehicle can be given by this Court and for that purpose he relied on the decision of this Court in 2009 (1) Mh.L.J. 898 Traders Pvt. Ltd., Ahmedabad and another .vs. Sunanda wd/o Krishna Machivale and others. The said decision has been rendered by this Court on the basis of decision in (2004) 2 SCC 1 National Insurance Co. Ltd. vs. Baljit Kaur. 6. The learned Counsel for the appellant submits that the amount as directed, has been deposited in the Court and same has not been paid to the respondents at all. He submits that when the Court finds that the appellant is not liable to indemnify the owner, there is no question of the appellant paying the amount and then recovering the same from the owner. He submits that the direction as given by the Hon'ble Supreme Court in National Insurance Co Ltd. Vs. Baljit Kaur's case was one under Article 142 of the Constitution of India and this Court does not 3 have such a power. A Division Bench of this Court had occasion to deal with the question as to whether a direction issued by the Hon'ble Supreme Court in Baljit Kaur's case was under Article 142 of the Constitution of India or not. The Division Bench of this Court has specifically held that the direction issued in Baljit Kaur's case was under Article 142 of the Constitution of India and I am bound by the said decision and I agree with the view expressed in 2009(1) Mh.L.J. 898. 7. The learned Advocate for the respondents has relied on the decision reported in 2010(1) Mh.L.J. 889 New India Assurance Company Ltd .vs. Kusum and others. In this case the question that arose before the Hon'ble Supreme Court was whether it was necessary for the Insurance Company to file a separate suit or it can straight way file an execution on the basis of the order passed in that particular suit. The Hon'ble Supreme Court has held that there is no need to file a separate suit and the order can be executed. The learned Advocate submits that this order to recover the amount from Insurance Company is not under Article 142 of the Constitution of India. This Court has interpreted the Judgment in Baljit Kaur's case and has held that, that is an order under Article 142 of the Constitution of India. Further, it appears that this decision has been rendered by the Hon'ble Supreme Court in exercise of power under Article 142 of the Constitution of India, inasmuch as, it relies on decision in (2008)2 SCC 595 Dedappa vs. 4 National Insurance Co. Ltd. 8. The amount was deposited by the appellant in this Court as directed by this Court. The amount has not as yet been paid to the respondents. It is in the custody of the Court itself, although the same may have been invested in the name of the respondents. The amount in no case can be said to have been paid to the respondents. In the circumstances, I do not see any reason to change the order as passed by this Court and there is no question of paying the amount, lying in deposit with this Court, to the respondent since the Insurance Company is not at all liable to pay. The application for speaking to minutes is disposed of. JUDGE. adgokar