^ ^> PA^F Mj ^o'L, 'VV -^^^» BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR IVI.A.(C) No. f^2^:/2009 APPELLANT DEFENDANT N0.3 ^ B"\ P%1 p% &% Sinsle SSRKM 1. IFFCO- TOKIO GENERAL INSURANCE COMPANY LIMITED, through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd,I, .o}^\c-i"_.fQe.^'r' 3rd Floc"' 345-347, Lalganga Shopping ^v'^~ " Mal,G.ERoadRaipur(CG) ^^«y^y>"" 9W ltf'T>0 RESPONDENTN0.1 CLAIMANT N0. 1 RESPONDENT N0.2 CLAIMANT N0. 2 RESPONDENTN0.3 DEFENDANT N0.1 RESPQNDENTN0.4 DEFENDANT N0.2 VERSUS ^ 1. P-. 2. 5 ? 3. .4. Ramesh Kumar Manikpuri, S/o Late Jugaldas Manikpuri, Aged about 32 years. Smt Saraswatibai Manikpuri, W/o Late Jugaldas Manikpuri, Aged about 50 years. Both are R/o Ward No.-4, Kasturba Nagar, Sindhi Colony, Behind Ramkali Bada, P.S. Civil Line, Bilaspurjah. & Dist- Bilaspur(C.G.) Kausal Sahu, S/o Brijnandan Sahu, Aged about 20 years, R/o Chirhapara, P.S.-Takathpur, Tah.- Takathpur, Dist.- Bilaspur(C.G.) - (Driver of offending vehiele) Smt Karuna Davi Dhruv, W/o Late Ramsahai Dhruv, Aged about 45 years, ' R/o Chirhapara, P.S.-Takathpur, Tah.& Dist.- Bilaspur(C.G.) - (Owner of offending vehicle) M^. PAG£ No. 2- MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 ->A <r H!QH CQURT OF CHHATTISGARH AT BILASP^'R EL Oefendant No.3 RESPONDENTS i.A.(C)No.1£350F:2Q09 iffco Tokio General Insurance Company Limited. Versus Ramesh Kumar Manikpuri and others. MiSCELLANEOUS APPEAL UNDER SECTiON 173 OF THE MOTOR VEHJGLEACT.1S88 (SB: Hon'bte Wr. N.K. Agarwal. J.) Present : r. Y.S. Thakur, counse! forthe appeltant. -. Amit Singh, counsei for respondents No. 1 and 2. None for respondents No. 3 & 4. 1. teing aggrieved and dissatisfied with the direction of first pay the amount of compensation to the ciaimants and then to recover it from the owner of ths vehicle, the instant appeal has been preferred by appeiiant/ iffco Tokio Generai insurancs Company Limited against the award dated 20.04.200S passed by 6 Additionai Motor Accident Claims Tribunal (for short 'ths Tribunal'), Bitaspur in Ciaim Case No.116/2008.. 2. As against the compensation of Rs.6,60,000/- claimed by unfortunate widow and son of deceased Jugaldas Manikpuri by fiiing clalm petition under Section 166 of the Motor Vehicles Act for his death in the motor accident on 2.4.2008, the Tribunal has awarded a 'total sum of Rs.2,25,000/- as compensatlon atong with interest 12% per annum from ths date of filing of claim petition till its actual payment. 3. Learned Tribunal, on a c|ose scrutiny of the evidence led, held: the accident had occurred due to rash and neg!igent driving of motor cycle bearing registration No. CG 10 EC/9062 by its driver i.e. respondent No. 3; Jugaldas Manikpuri died on account of injuries sustained by him in the said accident; exonerated the appellant/lnsurance Company from its liability to pay compensation; dirscted appellant /Insurance Company to Tirst pay the amount of compensation to the cjaimantsand then to recover it from the owner of the vehicle i.e. respondent No.4 - Smt. Karuna Devi Dhruv; assessed and awarded tha aforesaid amouni of compensation to ciaimants aiong with interest @ 12% per annum from thedate offiling of claim petition till its actual payment. 4. Shri Y.S. Thakur, learned counse! appearing for the appeilant/insurance Company wou!d submit: though the motorcyclist was not having va!id and effective driving licence at the time of accident, even then the Tribuna! has directed the appellant to pay first amount ofcompensation to the claimants and then recover it from the owner of the vehide which is not sustainable in the law and the above direction deserves to be set aside. 5. On the other hand, Shri Amit Singh, tearned counsel appearing for the claimants/respondent No.1 & 2 would submit: the appeilant/lnsurance Company has not proved its defence taken by it in the written statement, in the absence whereof the appellanflnsurance Company ought not to have been exonerated from its liability to pay compensation to the clalmants. It was further contented that in view of the judgment of Supreme Court in case of National Insurance Company Ud. v. Swaran Singh and others, reported in (2004) 3 SCC 297 the Tribuna! has rightty directed the appellant to pay first amount of compensation to the ciaimants and then to recover it from the owner of the vehicte. 6. ! have heard learned counsel for the partles and perused the material avaiiable on record including impugned award. 7. The core question therefore arises for determlnation of this Court is v^hether the Tribunal has erred jp directing the appeilant/lnsurance Company to pay first amount of compensation to the claimants and then to recover it from the owngr of the vehicle. 8. The Supreme Court in case of Swaran Singh (Supra) has laid down the principie of law that in order to seek exoneration, the Insurance Company has to prove the wiilful breach of condition of ppllcy on the part of the owner of the vehicle and if Insurance Company has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-Section (7) of the Motor Vehicle Act, then the Trlbunal can direct thaf the insurer is liable to be ^^ "•"X. reimbursed by the insured for the compensation and other amounts which it has been compeiled to pay to the fhird party underthe award of the Tribunal and observed in para 110(x) as under: "(x) Where an 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 148(2) read with sub- sectlon (7), as interpreted by this Court above, the Tribunal can direct that the insurer is tiable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of ciaim by the Tribuna! will be enforceable and the money found due to the insurer from the insured wi!! be recoverable on a certificate issued by the Tribunal to the Collector in thesame mannsr under Section 174 of the Act as arrears of Sand revenue. The certificate wiil 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." 9. In the light of above judgment of the Supreme Court, Indisputably, the Tribunat has not erred in directing the appeliant/lnsurance Company to first pay the amount of compensation to the ciaimants and then to .recover it from the owner of the vehicle. 10. However, in view of the jtidgment of Supreme Court in case of Pramod Kumar Aarawal & another v. Mushtari Beaum (Smt.) and others1, it is ordered that appetlant/insurer shall deposit in the Tribunal the quantum of compensation awarded to the claimants/respondents No.1 & 2 within a period ofthree months. For the purpose of recovering the same from the 1 2004 (8) SCC 667. Insured, the insurer shall not be required to file a suit. !t 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 between the Tribunal and the issue is decided against the owner and in favour of insurer. 11. The instani misc. appeal is disposed of accordingly. 12. !n view of the above, counse! for the respondents No. 1 & 2/c!aimants submits that he is not pressing their cross appeal for enhancement of compensation. Accordingly, it is dismissed as not pressed. Sd/- 13. No order as to costs. | ^•^•Agrawal Judge