IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (C) No.- ^f^ /201^ APPELLANT BRANCH MANAGER,^H£ ORIENTAL INSURANCE COMPANY LIMITED, BILASPUR, DISTRICT -BILASPUR C.G. Vrs. RESPONDENTS/CLAIMANTS ^"'^A^'0'" ......^'^< <^:^<?'^' l^-""" o :-1. RAGHUMANIYA W/0 PURUSHOTTAM, AGE 45 YRS., CASTE RAJWAR, 2. PHOOL KUNWAR, W/0 PURUSHOTTAM, ^ AGE 40 YRS., CASTE RAJWAR, BOTH RESmENT, VILLAGE SALGANWAKALA, THANAAND TEHSIL SONHAT, DISTRICT-KOREA C.G. RESPONDENTS/NON-APPLICANTS:- 3X ^ s>- CHHATTARSAI RAJWADE S/0 DHANSAI RAJWADE, AGE 55 YRS. CASTE RAJWAR, RESIDENT VILLAGE- SALKA, THANA AND TEHSIL BAIKUNTHPUR, DISTRICT-KOREA C.G. GARUD KUMAR S/0 MOHARSAI, AGE 28 YRS. CASTE RAJWAR, RESIDENT - VILLAGE KHARWAT (MAHUAPARA) TEHSIL BAIKUNTHPUR, DISTRICT- KOREA C.G. / APPEAL UNDER SECTION 173 OF MOTOR VEmCLE ACT 1988 APP17 A T \7A T TTTnn .^^ ^; HIGH COURT OP CHHATTISGARHAT.BILASPUR M.A. (Cl N0. 2S5 OP 2011 APPBLLANT Versus REBPONDElfTS Branch Manager, Th-e Oriental lusuraiice Compaiiy Liinited Raghumaniya aiid Others ' APPBAL UNDER SECTION 173 OP THE MOTOR VEHICLES ACT.1988 DB: Hou»b!eSIiri 2. M. Q'itddasi 85 • Hoa'ble Shri G. Miahajuddin, JJ. Pre^enfc- Shri Siidhir Agrawal, Advocate for the appellant. SIiri Anil Gijlati, Advocate for fhe respoiideiits. ORDBRtQral) (Passed on this 12th day of May, 2011) Per I. M. Qiiddusi, J. 1.: • This appead lias been 'filed by tlie appellaiit-fhe Oriental Insuraace Conipaiiy Limited agaiast tlie award dated .28-09- 2010, passed by the Motor Accideiit Claims Tribuxial, (for short 'the Tribuaal') Korea (Baikimthpur) in Claim Case No.42/2008, to pay coinpensation to the claimants and recover it fi'om. fhe owner of.the vehicle io. question, .:• }. 2. The, biief facts, m nutshell, are tliat on 18-05-2008 at 7.30 P.M., while fhe deceased-Purushottam. Rajwade alongwitli ' / o-ne Shivkuiiiai' was going as pillion rider from ViUage Charclia Colliery weekly Mai'ket to his village Salganwakala (Sonhat) by his motorcycle beariiig registration No. C.G.-.16 D/2308, he was dashed by (Pickup) bearaiig registea.tioii No. M.P. 18, t-t I. /fXWS^ ^i\ GA/0330 due to rash aad negl^ent drivio.g of fhe driver of fhe offendiag vehicle (Pickup), as a resiilt of which Purushottam aiid Shivkuinar fell down along with xiiotQrcycle aad Purshottam sustained giievous injiuies iii fhe said accident. He was taken to Goveniment Hospital, Balkunthpur for treataiexit, where he died durmg treatment, 3. The clainxaats, unfortunate widows offhe deceased, filed a claim petition under Section 166 of the Motor Vehicles Act^ 1988 (for short 'fhe Act") for award/of a total coinpensation of Rs. 32,20,000/- undervadous heads. 4. Leamed Clainis Tribunal on a^close scnitiny of ihe evideuce led, xaaterial placed and subxaissions made by both the parties, awarded a total coxapeiisation of Rs.3,50,000/- along wifh niterest at fhe rate of7.5°^oper aiiiiusn from fhe clate of the appUcation, holding tliat tlie non-applicaiits No, 1 aad 2 (driver aad owner) are Mable to pay/ tlie amoiuit of compensation. However, it has been directed by leamed. Tribunal,"that at fhe first iiistao.ee'the.ajiiount of coiapeiisation shall be paid by fhe non-appUcant No.3/lD.surao.ee Conipaiiy and Aereafter^ it shall recover the same from fhe non-applicaTit No.2 (owner). 5. We have lieard leax'o.ecl counsel appeariiig for fhq parties ao-d perused fhe lower Coux't record. 6. The Biaiii fhrust of tfae appellaxit is that wliexi -leanied Tribiinal has held 'that fhe Insiii^iice Coisipany is not liable to BEt -A<-^-;fc^^,BW*Ariikfe*Mw.'-4<»h::"A'Ai.wS3WS® .i,.:":''^^.~~"s%, I.'ISSi, S. —..^g- ^...^/ •^'fe^^' ,i'.';.'.':'''-t' ^) pay the amount of conipeiisatioii, the directiou to pay aiid recover from. tlie noii-applicaat No,2 (owner) is iiot szistainable, 7. In the case of C^ Irfafc i?s^ Swarcw Singh emd Ofthers, (2004) 3 Stipreme- C®urtCesses 297, fhe HonT^le Apex Cozirt held ia a case of third party acciclent the liability of the iasziraiice coznpaay to satisfy th.e decree at. fhe first iastaace and to recover tlie awarded amount fi'om the owner or driver tliereof has been holding the field for a long tuiie. It is a weU-setUed rule of l^w aad shotild iiot oidiaarily be deviated froni. Further it has beexi directed fhat Where 011 adjudication of tiie claim under the Act the Tnbunal arrives at a concliision that the io.suret ha^-satisfactorily proved its defence ia accordaace with the provisions of Section 149(2) read with sub-section (7)^ as iaterpreted by this Coiut above, fhe Tribunal cao. direct fhat the iaszirer is Uable to be reimbursed by the insure.d for the coxiipexisation aad ofher ajaounts which it has been coBipeUed to pay to Uie fhinl party under fhe award of tfie Tribunal. Such determiaation of claiai by fhe Tribunal wiU be enforceable and fhe money found due to the iasurer from fhe insured wiU be recoverable on a certiiicate issiied by th.e Tribuxial to fhe CoUector in the same niao.n.er under Section 174 of the Act as aiTears of land rcvenue, The certificate wiU be issued for fhe recoveiy as arrears of land revenue only if, as required by sub-section(3) of Section 168 of fhe Act fhe msured fails to deposit the amount awarded m ^ favour of the insurer withia thirty days from Uie date of aiinouiiceinent ofthe award by fhe Tribunal. r ^r- 4 !K*»»^ 8. But ia a recent decision, Natlenal Insurcm.cc C<»< I^tdL versus Peinfathneni and Another, (2009) 8 8CC 785, HouT^le Supreine Court while considermg the issue - when a person has no liabifclty to pay at all how caix it be corapeUed to pay? - has observed that it Eaay take years for fhe Insui'aace Coiiipany to recover the amount from fhe owner of fhe vehicle, aad it is also possible that for sorae reason fhe recoveiy xaa)r not be possible at all, and fhe appeal in questlon has been referred to the larger Bench to decide flie foUowmg question; A'(l) Ifan Insurance Compaay caa prove that it does not have smy Mability to pay aiiy amount ia law to the claimaats under fhe Motor Vehicles Act or any other enactment, caii fhe Court yet compel it to pay fhe aoiount ia question giviri^ it Uberty to later on recover tlie same fi'om the owner of £he vehicle. (2) Cao. such a direction be given uncler Article 142 of fhe Constitution, and what is the scope of Ardcle 142? Does Article 142 penait the Court to create a liabitity where fhere is none?" 9, Leam.ed counsel for the appellaiit has also placed reliasice oxi a declsion ia Oricntal Ins^rancc C@. Ltd. ps< Waajc^paa emd ethers, 2004 AIR SCW 95J2, m which, the foUowmg direction has been given ia para 8 •: - 'Therefore, while setting aside fhe judgment of the High Court we direct ia terms of what has been stated m Baljit Kaur's case (supra) fhat fhe insurer shatl pay fhe quaiituni of com.pensation fixed by the Tribzinal, about which thex*e was no disput^ raised, to the respondents-clabiiaats withia three i&onths fi'oia today, For fhe purpose of recoveriiig fhe saine froin fhe insured, the insurcr shaU not ' ^f L •-^^ be required to ffle a suit. It niay initiate a proceediag before fhe concenied Executiing Court as if the dispute between the insurer and fhe owner was fhe subject xnatter of determiination before fhe Tribunal aad the isszie is decided agaiiist the owner and iii favour of fhe iasurer. Beforc release of tlie aaiount to fhe uisured, owner of the vehicle shall be issued a notice and he shaU be required to furaish seciirity for fhe entire amoiuit which the itisurer will pay to fhe claiixiants, The ofFei^diag vehicle shall be attached, as a part of fhe security^ If necessity adses fhe Execiitmg Court shaU take assistaace of the concemed Regional Traasport authority, TMe Executing Court shall pass appropriate orders ia accordaiice with law as to fhe iiiaaner in which the iasnred, owuer of fhe vehicle shall inake payiaent to the iiisurer. In case fherc is aiiy default it shall be open to fhe Executing Court to direct reaMzation by disposal of the securities to be faraished or froni aay ofher property or properties of the owuer of fhe vehicle, fhe insured, The appeal is disposed of in the afo:tesaid terms, with no order as to costs^ 10. In view of fhe directions aad observations given by the Hon'ble Suprenie Court in the aforesaid decisions, the appeal is disposed of in fhe aforesaid terms fhat the appeUant/ Insurance CoEapany shall pay aad recover froin fhe owner, as has been directed by the^Tnbunal. No order as to ^osts. Kvr Sd/- Dr. I.M. Quddusi Judge Sd/- G.Minha}uddin Judge l'—f!^~-——