IN THE HIGH COURT OF CHHATISGATH AT BILASPUR (C.G.I t)^$ Misc. Apoeal tC} No. /2006 APPELLANT Bajaj Allianz General Insurance Company Limited,Through Branch Manager, Divisional Office Opposite R.T.O. Office, Bargawan, Katni, ^ Distt. Katni (M.P.) VERSUS RESPONDENTS Smt. Sudha Gupta W/o Shri Ashok Kumar Gupta aged about 45 years, R/o Krishna Nagar, District Bilaspur (C.G.) Belgahna, ayw\f- ./:iy" .^>'\^ ey^ ' ^'>"'<' ^>v Ashok Kumar Gupta S/o Shri Shankar Lal Gupta aged about 48 years, R/o Krishna Nagar, Belgahna, District Bilaspur (C.G.) (CLAIMANTSI Dinesh Kumar S/o Pyarelal, R/o Village- Bandhi, Post- Khirhani, Tahsil- Bahoriband, District Katni ^ (M.P.) (OWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTQR VEHICLES ACT 1988 ASAMENDED BY ACT OP 1994 3) HICrH COURT OP CHHATTIBOARH AT BHLASPUR M.A,iClN0.48Spy20Q6 APPELLANT Bajai Allian^ Geaeral Insiuaace Vs. SSBSPONDENTS Bajaj Alliaii^ Geaeral Conipany Limited. Siiit. Sudha Gupta aad others APPEAL UNDER SECTION 173 OF THE MOTOR TvrEHICLES ACT. 1988 AS AMENDED BY ACT OF 1994 DB: Hoa'ble Stei I. M. Qi&ddusi & Hon*ble Shri O, MinbajKddisa, JJ. Present: Shri S.S. Rajput counsel for the appellant. None for the respondents. ORAJ< QRDBR (Passed ea 22nd day of Septeaabeif, 2011) Pey I. M. Quddiisi, J. List Is 'beiag revlsed. Case is called-out twice, No one appears ibr tlie respouderAte, However, learaed couasel for tiie appellaat is lieard, 2. Thls appeal has been filed by the appellaiit-BaJaj Alliajo.^ Geiieral lasurance Compaiiy Lisiiited agaiiist the impugaecl award dated 18-09-2006 passed by fhe Teafh AddMioiial Motor Accident Claims Tribmial (F.T/C.), BIlaspur (for sfoort the Claims Tiibuiial5) in Clalm Case No,50/2005, iii so far as it relates to fhe dii'ection to the appellaat/Insuraiice Ctompaay to pay cojQLipensatlon to ttie claioiaiits and recover fhe same froiu the owner offfae offendiag vehicle. 3. Brief facts of fhe case, as per versioii of tlie claioiaiits, are fhat flie appllcaate/claiiiiaats ai~e paients oftlie cleceased. ?^on-applicarit No, 1 was owner aad the appeBaiit hereiii was msurer ofthe velucle (Tractor). On 10-01-2005 at 12-30 p.m., deceased Mintu aUas Alok Gupta, who was aii ejaaipioyee ofiioii- applicaiit No.l, was drivmg the Tractor, beariiig registiation No. M.P. 21-C/9411, loaded wifh boulder (cruslied stoaes) for agricultui^e purpose, fiom Slddhababa Paliadi to dowjiwaal, At fliat tloie, iiear Rest House, flie sald tractor taTiied tiirtle, tliereby the driver came xio.der tlie ti'actor, resiiltmg la Iiis death. It is uudisputed fliat at the tliiie of accideat, fhe deceased was havliig a valid aad effectlve driviag Mceuce. The deceaaed was earnuig Rs.6,000/- per iiiojifh, 4, Tlie claimaats beiiig legal helrs of tbe deceased liad flled a claka petition iiiider Sectlon 166 of fhe Motor Vehicles Acty 1988 (for short 'fhe Act") claiming a total c-oiapeBsatioa to fhe tune ol'Rs. 40,10,000/-. 5 , Learned Clalms Tribiuial oa a close acratiiiy of fhe evidence led, iu.aterial placed aiid subjaiissions made by bofh tiie parties, awarded a total SUBI of cojoaiperAsation of Rs.3,50,000/- aloug wifli iaterest at fhe rate of 9^o per aiuium from fhe date of application till its payment holdiag fhe owner of flie velilcle as llable to pay fhe aiciotint of compeasatiori, However, learned Tribuiial directed ftie appeUaiit/lasiiTaace Conxpatiy to pay fhe aoiount of compensation to fhe clamxaiits and fhereafter, sliall recover tfae same froiii fhe owaer of the vehicle, 6, We liave heard leariied counsel for fhe appellmit aiid perused tiie record of tiie Claiois Tribunal. 7, The iiiaiii thrust of tlie appeSlaiit is that wfaen leained Tribunal has held fhat fhe Insuraiiee Compaiiy is not liable to pay the amouat of compeiisation, fhe dii'ection to pay aiid recover froni the aoii-appMeaat No. 2 is aot sustai&iable, 8. Iii tlie case of NaUenal Jnsurayice €0.Ltd. ^s. S^twrast Stngh <md € hers; reported m (2004) 3 SCC 297^ Honnole Apex Court has held fhat iti a case of a fliu'd parly accideat ffae UablUty of th.e iasurance compaiiy to aatisfy tikie deciiee at flie fk'st iastaace aad to recover the awarded aiiiouat froxa flie owner or driver fhereof has been holding fhe field for a loiig tioie. It is a well-settied rzile of law and should uot OAduiaiily be deviated from. Further it lias been directed that <Wheie 011 adjudication of fhe claim under fhe Act tihe TrlbtUial arrwes at a conelusioir fliat the iasurer has satisfactoiily proved its ^ 1 ''^" -..:J,.^ J^ '%. defeuce in acc-ordaace witihi the provlsions of Seetioii 149(2) read wifh sub-sectioii (7), as interpreted by this Ck>urt above, fhe Tribiiiial caa direct fhat fhe iasuA^er is liable to be reimbursed by fhe iasuA'ed for ftie conipensatioAi aad ofher aaioiuits which it has been eonipelled to pay to fhie tiiird party under the award of the Tribunal, Such determjination of claiiii by flie Tribixaal wUl be enforceable and tlie moiiey found due to /fhe iiisurer fioiu the iiisured wiU be recoverable on a ceAtificate issued by the Tribuiial to fhe CoUector ia fhe same iiiaaner uiider Section 174 of the Act as airears of laad revenue. The certificate wUl be issued for the A'ecoveiy as arrears of laad revenue ouly if, as required by sub-section (3) of Section 168 of the Act fhe msured falls to deposit fhe amouat aw^arded m favour of fhe msurer wifhia thirty days fiom flie date of aiinouncement of the award by the Tiibujial» 9. But iu. a recent decision, NaSienaS. Insurance Cfr. Ltdo vs. Peiroathneni and Anether^ (2009} 8 SCC 785, Hou'ble Suprenie Court whlle makiag an obseAvatioa tliat wtien a person has 110 liability to pay at aU how can it be coHipeUed to pay? It niay take years for fhe Insurance Compaiiy to recover the aEaouiit from fhe owner of the vehicle aiid it is also possFole fhat for some reason Uie recoveiy may not be possible at aM, The appeal iii question has beea referred to fhe larger Bench to declde the foUowing questioa; <"{1) Ifaii Insuraiice Coiapaay can prove that it does not have any UabiUty to pay any asixount ia law to fhe claimaats under fhe Motor Vehicles Act or aay other eiiactoieiit, can the Coiirt. yet conipel it to pay tlie amouiit ia question givmg it liberty to later on recover fhe saine froni the owner of tbe vchiclc? (2) Caa such a directfcin be givea uader Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit tiie Court to create a Uability where fhere is none?" 10. The prayer of the appeUaat is coiifiiied oiily to fhe effect fhat fhough fhe owner of fhe vehicle has been held as respoiisible to pay fhe amount of cojaapeiisatioAi but fhe ^^ax^^ \ •< ^^^^' M ^ ? %^!-'"^ •^-...-.^ 1 4 ^o dii-ection has been issued to the appellaiit to pay compeusatioii to fhe claimants, thereafter, recover the aiiioimt of couapeiisation froiii fhe owaer of the veliicle, which is iiot sustaiaable iii law. 11. In view of fhe above, since tlie i&istaat ca^ is ja.ot a tiiiid party accldent, the ratio laid down ia fhe case of JVafcEo^al Ifimirance Co^ LtdL vs. SwQrwz Stngh (supra) woixld not be appllcaUle ia tiie iiistaat case, The appellaat/lAisuraace Coiapaay carAnot be held liable to pay conipensatioii and recover it froni fhe owiiei. Hence, the appeUaat/Iiisurance Cojiipan^y is exonerated from its Uability to pay coikipeiisation to fhe claimajits. 12. IAI the result, fhe appeal is allowed aiid direction given m the ijoipugued awai-d to fhe appellaiit/Insurance Coiaoipaay to pay aad recover is set aside. However, it is made clear that we are not consideriag the Biamtamabilily or aiiy ofher poiEit iii this appeal as this was not fhe subject iiiatter of tfae appeal. However, fhe part of fhe inipugaed award by whicli peual laterest has been ijoiposed agaiast fhe spirit of fhe law laid down by Honl>le the Supi^nie Court iii fhe case of W<Gri5£<i%a2 JnsurcOTce Co^ I^fat ^ JSesfecw Bahadur cmd ather^ reported ia AIR 2004 SC 1S81» 1s set aside. No oider as to costa. Kvr Sd/- I.M. Quddusi Judge Sd/- G. Minhajuddin Judge