••s.v:..sKs^:ms«^^m^fSi ,^y/"' ^ °1 ...•-••• '^•"" IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No APPELL/ Defeadant No.3 .^ ./2006 iJi'SiSiffilii; B@3§Si [^L':^ 3^^'^^^ ^/'^ub'^''^4* The Oriental InsuTaace Couipany Ltd., through its Divisional Manager, Divisional Office, Bilaspur (C.G.). RESPONDENT Claimant No. 1 RESPODNENT ./•"Claimaat No.2 RESPONDENT Claimaiit No.3 RESPONDENT Claimant No.4 RESONDENT < Defendant No. l >'^^^p,s „ \<^V a%\ ^ ^s^. <(>Ai^.^,W. 'S<^',.'*";;^fr"'"^A -: l**'^..tlAnaiw^.^,/' RESPODNENT Befeudaat No.2 -Versus - 1. Snit. Kunwaria Bai, 24 years, Wd/o Late Ghaashyain Singh. ?. ^ Dui^esh Kumar, 2% years, S/o Late Ghanshyam Singh. Minor, through inother Sint Kunwaria BaL 3^ Shri Jan Singh, 52 years, S/oShriVirSmgh. 4. ^ Sbri Ajit Singh, 20 years, S/oSluiJanSmgh. AU resident ofVfllage- Nagpura, Post- Senganiaada, P.S. Kota, Tahsil- Kota, District- Bilaspur (C.G.). 5. ^ Shri Ranjeet Singh, 23 years, / S/o Shri Pratap Singh Dhruv, R/o Vfll^e- Tikrakala, P.S. Gaurela, District- Bilaspur. -Driver- -:. . 6. f Shri Manohar Siagh Raj, 40 ycars, S/o Shri Man Smgh Raj, R/o ViBage- Chatouna, Chowki- Belgaluia, PoU.ee Station- Kota, District- Bilaspur (C.G.). -Qwner- APPBAL UNDBR SECTIOH J73 OF THB MOTOR VBHICLES ACT. 1988. Appeal valued at Rs. 4.17.500/-. GtiF'T'li !'"'":!"• ""^f^ ^ ...-ic""^ HIGH COOTCT OP CHHATHSeAItH, BILA8POT; DB: APPBLLANT: RE8PONDBBT8: Hon'ble I. M. QIIDDUSI & Hun'bte QHOIAM MBMHAJUDDm, JJ M.A(Ct No.207/2006 The Oricntal Insuiaace Coiapany Ltd. Vs. Siat Vimla Bai & others APPBLLABT: RESPOMDBNTS: M.AICI N0.208/2006 The Oriental Insiirance Compaay Ltd. Vs. Saat Kunwaria Bai & others MI8C. APPEAUB UIBDBR SBCnOK 173 <»• THB MOTOR VEHICLB8ACT. 1988 Appearance: Mr. Prashaat Jayaswal, Sr. Adv<xate wifli Mr.^iaitendra Shulda, counsel for the appeflant in both tfae appeals. None for fhe respondente. Per J.M. ODDDffSI. J. ORAL ORDER (20.06.2011) 1. List is beiag revised. Case is again caUed out Even whcn the xnatter is called out twjce no one appeara for the respoadents. However, Mr. Prashant.JayaswalSr. Advocate appears ou behatfof.fhe appeUdnfc Thercfore, we proceed ex- parte against the respondents. 2. Since both fhe appeats arise-out of the saine wxsdent caused by Tractor TroBey No.C.G. 10-A/ 1354 & C.G. 10-A/1356, they are being disposed of by fhis comiaon order. The appeals have been fited ^amst the ixnpugucd awards dated / rffa'1"' ,-f ,yyss^-i ^/ (^/ ''"'''•.^x-W!^-'.^' 01.04.2006 passed separately by the X Addl. Motor Accidents Claiins Trfiaiinal (FTC), Bilaspur ia Claun Casc No.40/2005 (Kunwariya Bai aud ofhers -vs- -vs- Raajit Singh and ofhcrs) and Claiai Case No.41/2005 (Mst, Vimla Bai aad others -vs- Ranjlt Singh and others) 3. Brief facts of the case as per thc version of daimants are that on 12.04.2004 the deceased persons were going to Railway station on foot. At that timc the Tractor-TroUey bearing Regu. No.C.G. 10-A/1354 & C.G.10-A/1335 allegedfy driven by Ranjit Smgh/xespondent no.5 ia a rash and aegligent maaner dashed both the deceased pcrsons Chaitrain Sahu and Ghanshyain Singh and they died. The claimaats of Claim Case No.40/2005 have filed claim petition for (he award of total coinpensatiion of Rs.28,04,339/-whereas the claimaats of the Claim Case No.41/2005 have filed a separate Claua Ftetition seeking Compeasation ofRs.26,26,672/-. 4. Thc leamed Claims Tribunal held that the offending Vehicle which was being driven by respondent no.5 in a rash and negligent maaner dashed Chaitram & GBanshyam,' as a result of which, both of them died aad there waa breach crf policy conditioiis. The Tnbunal has awarded^ a total ccanpensatmn of Rs.4,17,500/- to the claimants of Claiia CaseHo.40/2005 and Rs.4,17,500/- -to the clamiaats of Claim. Case No.41/200& with fhc penal interest @ 12% pcr annum hoMmg the appcllant insurance Company liabte for payment ! i'll>r :.,u:s?.li'Ay5;'^-s.';l ./s"^ of coinpensation reserving fhe ri^it of recovery of fhe appeBant-Insurance Coinpany fi'oin the owner and driver. We have hcard learaed counsel for the parties aad have also gone through the records of fhe Tribunal. The staud of the appeBant is that learaed Tribunal Iias held that fhere was breach of poUcy conditioiis, therefore, the Insurance Coiupany is not liable to pay fhe amouat of coinpensation and the direction to pay and recover fimm fhe owncr/dnver is not sustamable. In fhe case of Matlonal In»u»anceCondtpany Vs. Swara Sli^i & others1 Honlile Apex Court has held that in a case of a third-party acddent fhe liabiUty of fhe iasuaaace compaay to satisfy the decree at fhe first iastance and to recover the awarded axaount Sxan. the owner or dnver fhercof has been holdiag the field for a long timc. It is a weU-setfled rule of law and shouM not ordidarily be deviated fix>m. Furfher it has been directed fhat 'Whcre on adjudication of fhe claun under the Act fhe Tribunal arrives at a coaclumon fhat the insurer has satisfactonly proved its defence ia accordaace with fhe provisfons of Sectioa 149(2) read wifh sub-scction (7), as interpreted by this Court above, the Tnbunal can direct that the insurer is Uable to be reimbursed by the iasured for ttte coiupcnaatkai aad other amounts which it has beeu cotapeBed to pay to tfie thud party under the award of fhe TnbunaL Such detennmation of claim by fhe Tribunal will be enforceable ssai fhe laoaey fozmd due to the msurer fix>m the iasured wfll be recoverabte (2004) 3 SCC 297 ,y on a cerdficate issued by the Tribunal to the CoUector ai the same maiiner under Scction 174 ofthe Act as MTears ofland revenue. The certificate wiU be issued for fhe recovexy as arrears ofland revenue onfy if, as required by sub-section (3) of Scction 168 of ttic Act fhe insured &ils to deposit thc amount awarded in favour of tbe insuier wittun tturty days fi?om the date of anaouncement - of fhe award by the Tribimal." 8. But ia a reccnt decision, MaUoaaI Itwiu'ance Co. Ud. v». Parvatlinent and aaother2, HonTate Supreme Court wtule making an observation that when a person has no liability to pay at all howr caa it be compeUed to pay ? It may take years for fhc Insuraace Coiapany to recover the amoiint fi?om the owner of fhe vetucle and it Is also posaible that for soine reason the recoveiy m.ay not be possibte at alL The Eg»pealin question Iias been referred to fhc larger Bench to decide the foUowiag questkin : "(l) If an Insurance Coinpaoy can pxuve ttiat it does aot have aay liability to pay aay amouat in law to the claimants under fhe Motor Veliictes Act or any ofher enactnxeat, cao. the Court yet coaapel it to pay the auiouat in questioa gwir^ it libcrty to later on recover the same fium the owaer of the vetucle ?. ^,. - (2) Can such a direction be given under Article 142 Qf fhe Constitution, and wliat is the scope o{ Artfcle 142 ? Does Ardcle 142 pcmut fhe Court to create a liability where there is aorie ? 9. Leamed counsel or the appellant has ateo placcd reUaace on a decision m Ortenfari Jnsurpncfe Co. Zitd. vs. Nanftypan tmd others3, ia which the foBowmg djrectlon has been given inpara-8 : 2 (2009) 8 SCC 785 3 2004 AIR SCW952 •iH!^!ll n ^Vs. '^ '-s ./;" '"aw^.sa'.-ssr " Therefore, whtle setting aside tfae jud^ient of the Hi^i Court we direct ia terms ofwhat has been stated in Baljit Kaur's caae (supra) that fhe insurer shafl pay fhe quaattua of coiapcnsation fixed by fhe Tribunal, about which fhere was no dispute raised, to tlie respondents-claimants within fhree laonths Sxim. today. For fhe purpose ofrecovering the saaic fix»xafhe iasitred, the insttrer shaU not be required to fiifc a suit. It inay mitiate a proceeding befere the conccmed Executing Court as if the dispute between the insiirer and the owner was the subject matter ofdeteruunation before the Tribunal and the tesue is decaled ^pinst fhe owner aad ia favour of fhe insurer. Before retease of the amount to fhe insured, owner of the velticte shaU be issued a notice and be shall be required to furaish security for fhe entire amount which fhe instirer wffl pay to the claiinants. The offindmg vdhide shaU be attached, as a part ofthe security. Ifitecessity arises fhe Executing Court sfaaU take assistance of the concemed Regional Transport authorily. The Executmg CQurt shaU pass appropriate orders in accordance with law as to fhe nianner an which the iiisured, owner of the vehicle shall make payiuent to the iusurer. In case there is aay defeiilt It shatl be open to the Executing Coiut to direot reaMzation by disposal of the securities to be fumished or fioxu aay ofherproperty or properties offhe owacr ofthe yclucle, fhe insured. The appeal is disposed ofin the aforesaid terms, with no order as to costs. 10. In view of fhe directions aad observations gfoen by fhe Hon'ble Supreinc Court ia the aforesaid decisions, the appeals are disposed of ia the aforesanl terms that the appeUant/Insurance Coinpany shaU pay the compeasation to fhe claimaats and tbcreafter rccover fhe same fioni thc owiter, as has been directed by fhc Tribunal. "^ 11. The Tribuaal has initialty graated 9% interest Howcver, it has imposed penal interest @ 12% per annuni in case fhe ainount of compcnsation is paid after the stipulated pcriod which is not sustainable. Therefore, we direct that the awards shaU cany inteiest @ 9% pcr anmiTn through out fix>m fhe date of fi1mg ofthe claim petitions tiU the payments are made. 12. In the result, M.^q.No.207/2006 & M.A.(C). No.208/2006 staufl disgosed of. No oider as to costs. -—~—- I.M.Quddusi Judge G.Minhajjudin Judge Rao