IN THE HON'BLE HIGH COURT OF CHHAmSGARH AT BILASPUR M.A. (C) No.-/^ 72009 (D.B.) h^l^ Isiosi Qm.M APPELLANT ?^' ......:";^s^ ^:^^\"^w •^t'*^A^ ^-"" ^- ^ ^^ THE ORIENTAL INSURANCE COMPANY LIMITED, C.B.Q.-2, MADINA MANZIL , FIRST FLOUR JAIL ROAD,KUTCHERY CHOWK, RAIPUR, (C.G.) Vrs. RESPQNDENTS/CLAIMANTS:- 1. 2. 3. 4. 5. 6. SMT. RAMAYANMATI RAMKRISHNA PATEL. W/0 LATE CHINTAMANI AGE 16 YRS. MINOR, S/0 LATE RAMKRISHNAPATEL. KAR^NMANIAGE 12 YRS. MINOR, D/0 LATE RAMKRISHNA PATEL. ROOP KUMARAGE 10 YRS. MINOR, S/0 LATE RAMKRISHNA PATEL ; ROOP KUMARI AGE 08 YRS. MINOR, D/0 LATE RAMKRISHNA PATEL. RAJA AGE 06 YRS. MINOR S/0 LATE RAMKRISHNA PATEL. NO.-02 TO 06, MINOR, ALL THROUGH MOTHER SMT. RAMAYANMATI. ALL RESIDENT OF VILLAGE DONASAGAR, SUB-TAHSIL- RATANPUR, DISTRICT-BILASPUR (C.G.) RESPONDENTS/NON-APPLICANTS:- SHEIKH RAFIQUE AGE 40 YRS. S/0 SHEIKH DADA MIYA, OtCUPATION DRIVER, ADDRESS KARBALA CHOWK BILASPZJR (C.G.), (VEHICLE DRIVER, VEHICLE N0 C.G.08/ZD/0290) A.K. CHANDRAKAR, S/0 M.R. CHANDRAKAR, RESIDENT RAIPUR (C.G.) (VEHICLE, OWNER VEHICLE N0. C.G08/ZD/0290) ..2.. ..2.. APPEAL UNDER SECTIONL173DF MOTQR VEHICLE ACT 1988 HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (C)No. 1529 of 2009 "-r, Appellant The Oriental Insurance Company Limited Versus Respondents Smt. Ramayanmati and Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Manindra Mohan Shrivastava, JJ Present- Shri SudhirAgrawal, Advocate for the appellant. Shri Sameer Singh, Advocate for the respondents No. 1 to 6. ORDER (Oral) (Passed on this 29th day ofApril, 2011) Perl. M. Quddusi.J. 1. This appeal has been filed by the appetlant-the.Oriental Insurance Company Limited against the direction made in the impugned award dated 26th November, 2008, passed by the IXth Motor Accident Claims Tribunal, (F.T.C.), Bilaspur in Claim Case No.119/2008, to pay compensation to the claimants and recover it from the owner ofthe vehicle in question. 2. The, brief facts, in nutshell, are that on 02-03-2007, the deceased- Ramkrishna Patel was going by his cycle via Ratanpur and at that point of time, suddenly offending vehicle Maruti Van bearing Registration No.C.G.-08-ZD-0290 came from opposite direction and due to rash and negligent driving, driver of the offending vehicle dashed thecycle, as a result ofwhich, Cycie Driver-RamKrishna Patel fell down along with his cycle, received severe injury on his head and became unconscious at the spot. Ramkrishna Patet was hospitalized for treatment in the CIMS, Bilaspur as well a? in the Mekahara Hospital, Raipur from 02-03-2007 to 04- 03-2007 and thereafter from 04-03-2007 to 27-04-2007. On 27-04-2007, .SIStl'.i .®Mlt^: ;)S;S?§S '^^^^::, :^^f^i^ MiS^^ ^^^^^•^ :^s&^-'. 'i^^^s^ '•^;^;©^^:^^I ^I^S^^ ^•^•v:^^. •'fiSE sssi 'SiS'^ u^:^^^ ''^"^^v^. :SiSS-r/ •s-s^:;:.^^ ^•"i-,'^y^.,:^' ^^'^^'^' ,t^i^^ ^y%^.'^-' ^'^•".^ '.^.^;^'.'.^' ^' ;Sg£^^.i!;.; .^^^5-i;;.:;:.1. ^^•^v. 'v^:^w':.- ....,.-^,.33s^E^r^'~T- Ramkrishna Patel died in the Mekahara Hospital, Raipur. The matter was reported to the police, where offence was registered against the non-applicant No. 1. 3. The legal heirs ofthe deceased filed a claim petitipn under Section 166 ofthe Motor Vehicles Act, 1988 for award of a total compensation of Rs. 45,95,0007- under various heads on the submissions that the deceased had taken treatment from 02-03-2007 to 04-03-2007 in CIMS Hospital, Bilaspur as well as treatment from 04-03-2007 to 27-04-2007 in the Mekahara Hospital, Raipur. 4. Learned Claims Tribunal having regard to the facts situation and the evidence on record, granted a total compensation of Rs.3,47,200/- along with interest at the rate of 6% per annum from the date of the application, holding that the non-applicants No.1 and 2 (driver and owner) are liable to pay the amount of compensation. However, it has been directed by learned Tribunal that at the first instance the amount of compensation shall be paid by the non-applicant No-3/lnsurance Company and then it shall recover from the non-applicant No.2 (owner). 5. We have heard learned counsel appearing for the parties and perused the lower Court record. 6. The main thrust of the appellant is that when learned Tribunal has held that the Insurance Company is not liable to pay the amount of compensation, the direction to pay and recover from the non-applicant No.2 (owner) is not sustainable. 7. In the case of National Insurance Co. Ltd. vs. Swaran Singh and Others, (2004) 3 Supreme Court Cases 297, the Hon'ble Apex Court held in a case ofthird party accident the liability of the 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 time. It is a well-settled rule of law and should not ordinarily be deviated from. Further it has been directed that 'Where on adjudication <II®ifi%d 'SSSSi •^SrSw:^S'i& •^ssss^ »^^B;^^ Stt Bl1 IIS^i^^ ^SiSi^: .S88BS "Sg33m 13S8S- ^ssis^^ ^ ISII' :'^s^^:' ^SiKK' ::^SQS^ wsiis: :SSiiSi^ :^?l^^t^;i:; •ft^^^^,:..;; 'SSSsS^ .^^tj'l^^;'-!' 'lstt^";^: S88ife '^iiill't' ^J^^^^M iKSSii1 K 9SS& ^^^a^.1. •i%s§i- .---- -T^^^e^ ^^•••^ .^\1- •^/ '^-«^^' -^\ of the claim under the Act the Tribunal arrives at a conclusion that the Ir^su^r 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 that the insurer is liable 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 claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate 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- 8ection(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. 8. But in a recent decision, National Insurance Co. Ltd. versus Parvathneni and Another, (2009) 8 SCC 785, 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: "(1) If an Insurance Company can prove that it does not have any liability to pay any amount 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?" 9. Learned counsel for the appellant has also placed reliance on a decision in Oriental Insurance Co. Ltd. vs. Nanjappan and others, 2004 AIR SCW 952, in which, the following direction has been given in para 8 :- S'i^^M^;^'s -iSSSSSSM' 'M&iSM. SiSiSS. •'s 'SSKSiM.•I iSSSiS'^ w^'^s;^'^' r^^^ M^^^. ;3SSS liiii^e^ ^BiiS^.. IBI' SSiSil- IBI- MSSiiSK- .IISSSI^ :^Q^.,. :.S^3f^^.'Kr: ?i%lit'^': ':iSSiMS^: SSK^' ••^?SB%^^i.;?' .^ll]^-^^^ ytw^^ 1 .iiSSSiS ^%^',:^^'i-"^ ^^ ^&¥;^^: !•! ^y^- ^!s'% s JJ "Therefore, while setting aside the judgment of the High Court we direct in terms of wliat has been stated in Baljit Kaur's case (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 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 favour of the insurer. Before release of the amount to the insured, owner ofthe 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 concerned 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." 10. In view of the directions and observations given by the Hon'ble Supreme Court in the aforesaid decisions, the appeal is disposed of in the aforesaid terms that the appellant/lnsurance Company shall pay and recover from the owner, as has been directed by the Tribunal. No order as to costs. Sd/- I.M.Quddusi Judge Tumane Sd/- Manindra Mohan Shrivastava Judge BE :9CSi& •^iSSSSK ^[M.^iM1^^. :-assils : 9SSS ^sssws: 'i^iiii:^ 'flSSif ^iSiiKS Wa s^^>^& S^'S^l-M :iB ^NIi^^rii^;^ ^f'; ^SSBt:' 'sssis •K ^s^^ ;-iSSS^ ^il^it?' '•^SfiM. ';^S8gJi' .ll8S •^li^^ ! .•ISSim ! i9S& 1