FAO No. 2026 of 2010 -1- In the High Court of Punjab & Haryana at Chandigarh FAO No. 2026 of 2010(O&M) Date of decision : 3.5.2010 The New India Assurance Company Limited ..... Appellant vs Smt. Harjinder Kaur and others .... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. L. M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate, for the appellant. Rajesh Bindal J. The Insurance Company is in appeal against the award dated 9.11.2009, passed by Motor Accidents Claims Tribunal, Patiala (for short, `the Tribunal'). Briefly, the facts of the case are that on 14.7.2007, Bahadur Singh and other persons were going from Patiala to Village Hulka, Post Office Manakpur, Police Station Banur, Tehsil Rajpura, District Patiala. They all took lift in a jeep bearing temporary registration no. PB-10-BQ/ Temp. 2007-8500 upto Banur. When they reached near Stephan Chemical Factory, on Rajpura to Zirakpur Road, a truck trolla bearing registration no. PB-03-Q/9183, driven by respondent no. 6 Nirmal Singh in a rash and negligent manner, came from behind and hit against the jeep. Due to this impact, all of them suffered injuries. Bahadur Singh and other injured were taken to A. P. Jain Civil Hospital, Rajpura, from where Bahadur Singh was referred to G. M. C. H., Sector-32, Chandigarh. But he died on the way. In the petition filed by the claimant for compensation, the learned Tribunal held that at the first instance, the appellant shall deposit the awarded amount of compensation and thereafter it shall recover the same from the driver and owner of the jeep. The only ground on which the award of the learned Tribunal is sought to be challenged is that in spite of the fact that the Insurance Company was not held liable, still it has been directed to satisfy the award first and thereafter recover the same from the driver and owner of the offending vehicle. It is submitted that once the Tribunal found that the Insurance Company is not liable, there was no question of issuing direction for satisfaction of the award at the first instance by it. After hearing learned counsel for the appellant and considering the consistent view of Hon'ble the Supreme Court taken in numerous judgments, the FAO No. 2026 of 2010 -2- directions issued by the learned Tribunal, which are sought to be challenged by the Insurance Company, cannot be faulted with. I do not find any reason to interfere with the impugned award. It is only that recently in National Insurance Co. Ltd. and others v. Parvathneni and another, (2010-1) 157 PLR 228 (SC), a Bench of Hon'ble the Supreme Court expressed its reservation regarding the earlier judgments and the matter was referred to Hon'ble the Chief Justice of India for constituting a larger Bench. The relevant paragraphs thereof are extracted below: “7. No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle. [See for example National Insurance Co. Ltd. v. Yellamma and another, (2008-4) 151 PLR 761 (SC): (2008) 7 SCC 526, Samundra Devi v. Narendra Kaur, (2007-4) 148 PLR 88 (SC): (2008) 9 SCC 100 (vide para 16), Oriental Insurance Co. v. Brij Mohan, (2007) 7 SCC 56 (vide para 13), New India Insurance Co. v. Darshan Devi, (2008) 7 SCC 416 (vide para 21), etc.]. 8. We have some reservations about the correctness of the aforesaid decisions of this Court. If the insurance company has no liability to pay at all, then, in our opinion, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. 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. 9. Hence, we direct that the papers of this case be placed before Hon'ble the Chief Justice of India for constituting a larger bench to decide the following questions: “(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 FAO No. 2026 of 2010 -3- 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?” In view of the legal position, as it stands today, no fault can be found with the directions issued by the learned Tribunal. Accordingly, the appeal is dismissed. 3.5.2010 ( Rajesh Bindal) vs Judge