^.-.'SS:v '"'•'s-g' / IN THE HON'BLE HIGH COURT OFCHHATTISHGARHAT BILASPUR IVI.A.(C) No.- ^4-^/dg APPELLANT :- ^THE ORIENTAL INSURANCE CO. LTD., THROUGH DIVISIONAL MANAGER, DIVISION NO.-l, JAIL ROAD, RAIPUR C.G. Vrs. RESPONDENTS/CLAIMANTS •^ 4^... \^\-^ "SUKALU RAM SATNAMI S/0 LATE CHANDU RAM SATNAMI, AGE 46 YEARS ' KAUSHILYA BAI WIDOW OF SUKALU RAM SATNAMI, AGE 43 YRS, BOTH RESIDENT OE VILLAGE POST RAJIM, TAH. & THANA - RAJIM, DISTRICT- RAIPUR, CHHATTISGARH SPONDENTS/NON-APPLICANTS :- 3. NEELKANTHS/0 PRAHLAD NISHAD, ^ PRESENT ADDRESS OF ADHIRDAS S/0 JANKI DAS BANGALI, RESIDENT OF BAGDEHIPARA, NAVAPARA, GOBRA, DISTRICT- RAIPUR C.G. PERMANENT ADDRESS OF MAURI- KALA, P.0.- KURUD, THANA & TAH.- KURUD,DISTRICT - DHAMTARI C.G. ADHIRDAS S/0 JANKI DASBANGALI, RESIDENT OF BAGDEHIPARA, NAVAPARA, GOBRA, P.0.- NAVAPARA, DISI.RTCT - RAIPUR C.G. APPEAL UNDER SECTION.173 OF MOTORVEHICLE ACT 1988 s •V \. \- B ^. IIGH OF CHHATTISGARHAT BILASPUR u4 n -t.1 U! Sl lon'bte Justice Prashant Kumar MishraLJJ, M.A. (C) No 647 of rancp Co.lt< iajs.s?s.52zS-3 2 'fcSsa a s IR CONSIDERATIO^l Sd/- Prashant Kumar Mishra Judge 1» ss H in'c jddusi, J. ^3^ SA'- I.M.Quddusl Judge -l<f Prashant Kumar Mishra Judge s..^ '•••-•^' mi aiii ^iXSWSiK'^S^^M <^z Hon'ble Shri I.M. Quddusi, J. Hon'ble ShriPrashant Kumar Mishra.J. APPELLANT iSmNDENE M.A.{ClNo. 647 of 2008 The Oriental Insurance Co. Ltd. 5US Sukalu Ram Satnami and others. APPEAL UNDER SECTION 173 OF THI 19! Appearance: Shri SudhirAgrawal, counsel forthe appellant. Shri P.P. Sahu, counsel forthe respondents No. 1 & 2. Shri Uttam Pandey, counsel for respondents No. 3 & 4. JUDG MEN T [Deiiveredon 04 102 1ANT KUMAR MISHPA. J. The present appeal under Section 173 of the Motor Vehicies Act has been prefsrred by the Oriental Insurance Company cha!!enging thsaward passed by the 10s Additionai Motor Accident Ciaims Tribunai, (F.T.C.) Raipur (C.G.) on 29/01/2008, ailowing the ciaim petition direeting the Insurance Gompany to pay compensation of Rs.4,20,000/- to the ctaimanis along with interest @ 6% per annum. 2. The facts of the case, briefly stated, are that at about 7.30 p.m. on 02/12/2006, near toll tax barrier Nayapara, the respondent No. 3 Neelkanth had parked'tractor No. C.G.04 ZD 3358 and troltey No. C.G.04 ZD 3359, (hereinafter referred to 'the. offending vehicie'), without putting on the parking ijght and in the middle of t'ne road because of which Santosh Patet, \Naresh Satnami, Vishnu Ram traveling in a motorcycle dashed against the u<'-r'i£, 1 1% "a3s"' 11 I iv "^^ 1 ~^2^ r; tractor troltey and received grievous injuries. Naresh Satnarni died on She SpOt. 3. The claimants/respondsnts No. 1 & 2 are the parents of the deceased and having suffered ioss of income, they moved an application under Section 163-A of t'ne Motor Vehicle Act, 1988 (henceforth 'the Act') to claim compensation of Rs.5,35,000/- on various heads. 4. T'ne respondents No. 3 & 4 being the driver and owner of the offending vehicie, denied ths contents of the claim petition and stated that the amount claimed is hsghiy excessive and in any case the vehicle bein< insured with the appellant-lnsurance Company, the iiability to pay compensation wouid be that of the Insurance Company. The appellant, in its reply, stated t'nat the driver of the offending vehicle was not having a valid and effective driving licence, therefore there being 'oreach of poticy conditions, the Insurance Company is not liabie. It has a!so been stated that the piliion-rider of the motorcycte is not a tht'rd party therefore the Insurance Company is not liabte on this ground also. 5. After completion ofenquirythe learned Tribunat, while deciding issue No.1 carne to the conclusion that the offending vehicle was negtigentty parked on the migdle of the road without putting on the parking vehide near the barrier while proeeeding to make payment of toll tax. It has also been observed t'nat in the criminal case filed by the prosecution against the driver and owner of the offsnding vehicle they have been held guilty and penaity of paynent of fine to She exlent of Rs. 500?- and Rs.200;'- respectively was imposed against them. Though a finding has been recorded that the responde.nt No. 3 was the driver of the offending vehicle at the time of acc'iderit yet, in view of the fact that the vehicle was wrongly parked on the 'mid.die of t'ne road and was in fact not in a moving conditlon, it cannot be ^ ^ "'-s^s^ ^ ^ ', v'"ey %- concluded as to who was driving vehicle at the relevant point of t'me. In any case, the Tribunal has 'neld that in a c'alm petition under Section 163-A of the Motor Vehicie Act the negligence part is not to the enquired as the provision of iaw does not contempiate such inquiry. 6. , Learned counsel for the appe!!ant has assailed the award on She ground of iiabiiity as well as on quantum; he has placed reliance on the case iaws in the matter of Ram Kanya Ba! and Others Vs. Unav Transport Co. (P) Ltd. and others reported In 200S (1) TAC 1063 (M.P.) (DB) and in the matter of Kaiishalya Devi Vs. Shri Karan Arora & others reported in 2007 (4) Supreme 29. According to the learned counsel the Insurance Company is not liable to pay any amount of compensation for the reason that the driver of the offending vehicle was not ha'/ing any llcence at the time of driving the vehicle and the direct'on to first pay and then recover - the amount from the owner of the vehicle is not correct in view of the finding that the driver was not having driving iicence. 7. The present te a case where the claimants had moved the ciaim petitlon under Section 163-A of the Motor Vehicle Act whereas the negligence part is not to be enquired. Similarly in para 18 of the award the ieamed Tribunai has recorded a categorica! finding that since the vehicle was driven by the driver of the offending vehicle in breach of the policy condition, the Insurance Company shali first pay the amount of compensation to the claimants and thereafter it may recoverthe sarne from the owner ofthe vehicle. Admittedlythe deceased was a third party qua the ofrending vehicle. The offending vehicie was on the middle of the road aiid thererore it \vas in use at the time of accident even though it may not be in ^ actual novlng condition. -"-;>.- \; \' -'<f .._. 1 ^. ^i;^s^, 'S\, '';'^^^^^S9S'. .'•' '":' '• ^3-^-;"'' "^^ ^ -^ ?.:•V 8. In the matter of Natlona! Insurance Company Ltd. vs. Singh and others reported in 2004 (3) SCC 297 the Hon'bie Court has held thus in paragraph 107 and 110 (x) thereof:- "107. We may, however, hasten to add that the Tribunat and the court must, however, exerdse their jurisdiction to issue such a direction upon consideration of the facts and circumsSances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that t'ne insured has committed a breaeh of contract of insurance as envisaged under sub-clause (ii) of ciause (a) of sub-section (2) of Section 149 of the Act, the insurance company shali be entitled ,to rea'ise the awarded amounf from the ov/ner or driver of the vehicle, as the case may be, in execution ofthe same award having regard to the provisions of^Sections 165 and 168 ofthe Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Trtbunal it had not been able to do so, the insurance company may initiate a separate action therefore against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when th? evidence becomes available to or comes to the notice of She insurer at a subsequent stage or for one reason 6r the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the ov»ner of the vehic!e is detected or comes to the knowledge ofthe insurer at a later staae." "110. (x) Where ori adjudication of the ciaim under the Act the Tribunal arrives at a conciusion that the insurer has satisfactorily proved its defence in accordance with the provjsions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribuna! can direct that " the insursrjs liable to be reimbursed by the insured for the } compensation and other amounts which it has been \,: ^- "' 4 "t -'l •5- .s'< \- cn< othe, offen that not compelled to pay to the third party under the award of the Tribunal. Such determination of ciaim by the Tribunat wi!l be enforceable and the money found due to the insurer from the insured wll! be recoverable on a certlficate issued by the Tribunal to the Collector in the same manner under Section 174 ofthe Act as arrears of land revenue. The certificate wHI be issued for the recovery as arrears of land revenue only jf, as required by sub-section (3) ofSection 168 ofthe 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 Tribuna!." In view of the above law laid-down by the Hon'ble Supreme Court in iatter of Nationa! Insurance Company Ltd- vs. Swam Slngh and s (supra) and the Tact that. the deceased was a third party qua the iing vehicle, the contention of the !earned counsel for the appellant se order passed against the appe'lant-lnsurance Company is illega!, is 10. The appetlant has also argued about the quantum of the compensation, however the application moved by the Insurance Company under Section 170 of the Motor Vehlcle Act was rejected by the Tribunal by its order dated 16/08/200?. The said order is a reasoned order and even ot'nerwise the driver and owner ofthe offending vehicle have appeared and contested the case. therefore rejection of app!'ication under Section 170 of the Motor Vehicles Act by the Claims Tribunal is not found to be illegal. 'hus, in view of the rejection of appel!ant's applicat'on under Section 170 of the Motor Vehicles Act, it is not open for the appeliant to challenge the quantum of the amount of compensation awarded to the claimants. 11. As a result, the instant appeal has no substance, it deserves to be and is hereby dismissed. Sd/- I.M:Quddusi Judge K Sd/- Prashant Kumar Mishra Judge