•^ lllll1 llil.;i1iJlj,lj:^^M ... \A';;'r' IN THE HI<?H COURT OF JUOICATURE AT BILASPUR MISC. APPEAL Fcl N0.v ^'l OF C.P i^. OF 2008 APP6LLANT (Insurance Co.) o.¥\ •>'1^'^'^-.-^ ^;.;,.^^ ^^' Vs RESPONOENTS Claimant Owner & vehicle. briver of </ -^ ^- k t, s- '• l^k'm Bw Bajaj Allianz General Insurance Company Limited, Office at Shiv Mohan Bhawan.Vidhan Sabha Road, Pandri, Raipur. 1. Bunda bai W/o Late Santram yadav, Aged about 50 Years 2. Bharat yadav S/o Late Santram yadav, Aged about 32 Years. 3,Tarak Yadav S/o Lcrte Santram yadav. Aged about 30 Years Respondent No. 1 to 3 are R/o Village Chicha p.0. Litiya P.S. Bori district Durg C.G. 4. Kumari Bai W/6 Bhagwat Yddav Aged 28R/0 Village Dalli P.S. Dhumka bistrict Rajnandgaon C.Q. 5. Goutriha S/o Jhumuklal Soiu.R/o Durga Choura near Anna Shop Shakti Nagr word no. 18, Shakti Nagar burg Th. + bistrict Durg C.G. ^ APPEAL U/S 173 OF TH6 MOTOR VEHICLES ACT AGAINST THE AWA^D/ORbER DATEb 09.09.2008 PASSED BY THE 12th AbbITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL. rFTCI. bUR6. bISTRICT bURG fPRESIbED OVER BY SHRI O.P.GUPTA) IN CLAIM CASE N0.15/2008.. ^ ^.^^^..^J.w^.:-.^...--,,- .^.^."-. •„....-..'--.^ y%! ^ HIGH COURT OF CHHATTiSGARH AT DSVSSION HON'BLE MR. & HON'BLE MR. G. IVISNHAJUDDjN^JJ, M.A. lcl ADpejiant (Snsurance Co.) Claimant Vs Aliianz Generaj insurance Company Llmited, Raipur (CG) Bunda Bai and Present: iVir. Abhishek Sinha & Mr. Ghanshyam Patel, counsel for the appellant. Mr. Yadu, counsel for respondents No. 1 to 4. ORDER (Orall (4th August, 2011) Per S.iVi. Quddusl. J; 1. This appeai under Section 173 of the Motor Vehicfes Act has fiied by the appeilant/insurance company against the award of 12 Addltional Motor Accident Claims Tribunal (FTC), Durg (in short 'the Tribunal"), dated 9th September, 2008 passed in Cialm Case No. 15/08, insofar as it has directed the appelS-ant/insurance company to pay the amount of compensation and recover it from ttie owner of the vehlcie. 2. of the are that on 18.3.2008 at about 3.30 pm Santram Yadav vvas going to from : Chicha to Village : Litiya on his blcycie. When he Viilage : Jogigupha, at that tlme respondent No.5 by driving Minidore Pick Up No. CG-07-C/7283 (hereinafter to as "the offendjng vehide"), in a rash an.d negligent manner, the of Yadav from behind, as a resuit, injuries over hi's and whiie undergoing at Chandulal Hospitai, Bhijal, he djed on 23.3.2008. Ors the of of the said Cr.No.25/08 was at Poiice Station : Bori No.5 for the punlshable under 279, 337, iPC. n' ^^^^ /r'i ^ I 1^3Sj^ I ^-....,.^.../.' "^,?Y;^.C;£";" ^ 3. At the time of the 57 and Rs.6,000/- per as a in to thls, he was also Rs.1500/- byworking as PTS In the Govt. Hospital, Chlcha. No. 1 to 4, who are wife & children of the his a claim 166 of the Act, 1 988 (in short "the Act, 1988") for a of R-s. 9,00,000/- the of under various 4. However, Tribunai, for the and scrutiny of the evidence, ora! and documentary, adduced It, a tota! compensation of Rs.3,06,554/- with @ 6% p.a. from the of filing of the c-iaim petition tiii its payment Is made. Though the Triburia! has exonerated the appellant/lnsurance company from its liability, however, it has directed to pay the compensation to the claimants at the first instance and then recover the from the owner. 5. counse! for the parties, the Lower Court (LCR) as aiso the impugned award. 6. Tribunal, in the impugned award, has, inter aiia, hejd th-at the driver of the offending vehlcie was not having a valid and effective driving iicence and on the of accident, fhe driving was not renewed and the same vvas renewed subsequently. 7. The contention of learned counsel for the appellant/jnsurance company s's that when the Tribunat has heid that the insurance company i's not to pay the amount of compensation, the directf'on to pay and recover the frorn the owner of the offending vehicle is not In the eye of law. it Is not in that the vehicle was by the appellant/insurance company and the in Is a thlrd party accident. 8. in the of Conipany Vs. Swarn Slngh & others' Hon'ble Apex Court has held that in a case of a third-party the ijabiiity of the insurance company to satisfy the decree at the first and to recover the awarded amount from the or driver thereof has been holdjng the fieid for a long tlme. It ' (2004) 3 SCC 297 ^° is a rule of faw and should not ordinariiy be deviated frorn. Further It has been that Wnere on adjudication of the c'aim under the Act the Tribunaj arrives at a conciusion that the insurer has satlsfactoriiy proved its defence in accordance with the of Section 149(2) read Vi/ith sub-section (7), as jnterpreted by this Court above, the Tribunal can direct that the is to be reimbursed by the insured for the compensation and other amounts whtoh it has been compelied to pay to the third party underjhe award of the Tribunal. Such determination of claim by the Tribunal wiil be enforceable and the rnoney found due to the insurer from the jnsured wili be recoverabie on a cei-tificate by the Tribunai to the Coilector in the manner under Section 174 of the Act as arrears of tand revenue. The certificate will be issued for the recovery as arrears of iand revenue oniy if, as required by sub-section (3) of Section 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 Tribunai." 9. But jn a recent declsion, Co. Ltd. vs. Parvathneni and another2, Hon'ble Supreme Court whiie making an observation that when a person has no to pay at a!i hov^ can it be compeiied to pay ? !t rnay for the Company to recover the amount from the of the vehjcle and it Is aiso that for the recovery may not be at aii'. The in has to the to the : "(1) !f an Company can prove that it not have any liabiiity to pay any amount in law to the claimants under the Motor Vehicies Act or any other enactment, can the Court yet compel it to pay the amount jn question It jiberty to on recover the frorn the ovv'ner of the vehide ? (2) Can such a dlrection be glven under Artlcte 1 42 of the Constitution, and what is the scope of Artide 142 ? Does Artjcle 142 the Court to a jiabijjty where there Is none ? " (2009) 8 SCC 7-85 4 ^ tO.Leamed counsel or the has ateo on a decisjon in Co. ys. QthQfs3, in which the foilowing direction has been given in para -8: ° Therefore, whiie setting the judgment of the High Court we dlrect in terms of what has been in Baljit (supra) that the insurer shail pay the quantum of fjxed by the Tribun-at, about which there wm no dlspute raised, to the respondents-ciaimants within months from today. For the purpose of recovering the from the insured, the insurer shaii not be to fjte a suit. It may initjate a proceeding before the concerned Executing Court as If the between the jnsurer and the owner was the subject matter of determination the Tribunal and the Issue is decided the ovvner and in favour of the Insurer. Before of the amount to the insured, owner of the vehteie be a and he shaii be required to furnish for the entlre arnounf which the insurer wii! pay to the The vehtoie shaii be attached, as a part of the security. if the Executing Court take of the concerned Regionai Transport authority. The Executing Court shali orders in accordance with iaw as to the manner jn which the insured, owner of the vehicie shali make payment to the insurer. in there is any defauit it be open to the Executing Court to dlrect realjzation by of the sec.urities to be furnished or frorn any other property or properties of the owner of the vehlcie, the insured. The is disposed of in the aforesaid terms, with no order as to costs." 11 .En view of the directions and observatlons given by the Hon'ble Supreme Court In the above quoted decisions, the is of Jn terms of the dlrections given by the Hon'bie Supreme 2004 AIR SCW952 ^ Court, which be foilowed by the Tribunai while executing the award. 12. No order as to 13. Certlfied copy as per ruies. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge ^^Y' y^ M