l^ -.i c IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILAPSUR l^ Misc. Appeal {C} No. /20 APPELLANT a.y." Att- .^'" w t^ R'-"."- ..-^^i^y- ^•^^- ...^ ^. ^&^- B*.1!' • .^"'''y> .."• RESPONDENTS ^^^^' '^^..^^. ^ss-^ s^ sn^Ss K®?ii£h ?gP^3-^ ^.-^^^s;^ Bajaj Allianz Greneral Insurance Company Limited, G.E. Plaza, Airport Road, Yerawada, Pune (M.S.) Pin :- 411006 Through Bralich Manager, Branch Office at Shiv - Mohan Bhavan, Vidhan Sabha Road, Pandri, Raipur (C.G.)dNSURER) VERSUS 1) 2) 3) ^ ^t)@ $)(6) ?)@ 5)@ Chamra Das S/ Late Chaindas aged about 30 years, Shiv Das S/ Late Chaindas aged about 28 years, Saheb Das S/ Late Chaindas aged about 26 yeai-s, Ku. Rani D/o Late Pawan Kumar Verma, aged about 06years, Pradhu Das S/ Late Chaindas aged about 22 yestrs, All R/o Purani Basti Kohadiya, Thana Rampur, Tahsil & District Korba (C.G.) {CLAIMANTS) Chandraprakash Shrivas S/o Shri A.R. Shrivas, aged about 20 years, IDRIVERt A.R. Shrivas S/o Late C.R. Shrivas, aged about 50 years, R/o Qr. No. H/11, Sinchai (Irrigation) Colony, I.T.I., Korba (C.G.) (OWNER) Smt. Tikaitin Bai S./o Firat Das, aged about 40 years, Caste - Panika, R/o Ch^inpa Uchbhatti, District Janjgir - Champa (C.G.) (NON APPLICANT N0. 4) Smt. Majhali Devi W/o Chamar Das, aged about 39 years,, R/o Balco, Parasbhata Tah. SB Di.st. Korba (C.G.) 'NON APPLICANT N0. 5) Smt. Teej Bai W/o Moiddin, aged about 37 years,, R/o Belgiri Nala, Balco, Tahsil SE District Korba (C.G.) (NON APPLICANT N0. 6) MEBaORANDUM OF APPEAL UNDER SECTION 173 QFJTHE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 '^ 'y/ ^ '^.^y q!sisE^^^ 1G- OF 201 :Li t'T iajaj AIIianz Generat insur Company Limited Chamra Das and others. ^-g^nn,iS Shri S.S. Rajput, counsel forthe appellant. Shri Abhljit Sarkar, eounsel for respondents No.6 & 7. None for other respondents. •rd The instant appsal has been preferred by the appeilant/lnsurance Company against the award 12-09- 2008 passed by Motor Accident Claims Tribunai, Korba (for short 'fhe Tribunai') In ciaim case No.77/2007 whereby anct whereunder an amount of Rs. 89,000/- una'er different heads, has been awarded and the appellanyinsurance CQmpany is directed to pay tne amount of award first and then to recover the sarne from owner ofthe offending vehicle/respondent No.6. 2 Brief facts of the case according to appeilanf are that, on 04-01 -2004 when Mangii Bai, (since deceased) aged about 50 years, v/as standing on extreme left side ofthe road, was dashed near Viiiage Kohadiya, District Korba by ^ motorcycie (Bajaj Puisar) bearing registration No. C.G. 12/B-3383 due to rash and negligent driving by the driyer of the motoroycle (Bajaj Putsor) as a resuit of which she succumbed to the injuries sustalned in the said acciderst. 3. The claimants preferred an .appllcation before the Tribunal under Section 166 of the Motor Vehicles Act, claimina '^ compensation to the tune of Rs. 6,40,000/- for the death of the. deceased in the said accident. 4. Learned counsel appearing for the appeifant would contend that once the Tribunal has come to the conclusion that the appeliant/lnsurance Company has successfully proved ite defence and the owner of the vehicie has breached the conditions of the poiicy in as mueh as the driver of the offendinf vehicle was not having valid and effective drivlng licence, therefore, the Trsbursal has seriously erred in directing the appeSlant/Snsurance Company to pay the amount of award flrst antfthen to recover it from the owner ofthe vehicle. 5. On the other hand, leamed counsei appearing for the respondents No. 6 & 7 supported the impugned award and submitted that in view of the judgment in the case of Nationa! Inswance Co. Ltd. vs. Swaran Singh and others; reported in (2004) 3 SCC 297, the iearned Tribunal has rightly directed the appeilant/insurance Company to first pay the amount of award and Shen to recover it from the owner of the vehicle. ! have heard learned counsel for the parties, perused ihe and record ofthe Tribunal 7. Hon'ble the Apex Court in the case of Insurance Co. Ltd. Vs. Swaran S'mgh and others (supra) has held in paragraph 83 of Its judgment as under: "83. Sub-section (5) of Sectior. 149 which imposes a liability on the insurer rnust aiso be given its ful) effect. The insurance company may not be liable to satisfy the decree and, therefore, its iiability may be zero but it does not mean that it did not have initial Siability at ail. Thus, if the insurance company is made tiable to pay any amount, It can recover the entire amount paid to the third party on behaif of ^ the assured. If this interpretation is not iven {o the beneficent provisions of the Act having regard to its purport and object, we faii to see a situation where beneficent provisions can be given»effect to. Sub- section (7) of Section 149 of the Act, to which pointed attention of the Court has been drayvn by the learned counseS for the petitioner, which is in negativs language may now be noticed. The said provision must be read with sub-section (1) thereof. The right to avoid liabiiity in terms of sub- sectlon (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that Its defence has been accepted having regard to She facts ans circumstances of the case, the Tribunal has power to direct them to satisly the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading." 8. In view of above, the impugned award, the liable to be and is hereby di Mo order as to costs. io not find any illegallty or infirmity in appeat being devoid of substance is Sd/- N.K. Agrawal Judge Kw