IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 67/2006 National Insurance Company Limited … Appellant. Versus Mohd. Shamshad and two others … Respondents. Mr. Lalit Belwal, Advocate for the appellant. Mr. Rajendra Dobhal, learned counsel for the respondent No.3. UDated: 18-9-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173, of the Motor Vehicles Act 1988, has been preferred against the judgment and award dated 1-10-2005, passed by Motor Accident Claims Tribunal/ District Judge, Tehri Garhwal, in MACT Case No. 27/2000. 2- The facts of the case in brief are that on 23.3.2000 at about 8.00 P.M. deceased Mohd. Abrar was transporting vegetables from Truck No. U.P. 08/1211 from Najibabad to Ukhimath. He was sitting on the front seat of the said truck. The truck met with accident due to the rash and negligence of the driver, in which Mohd. Abrar died. The claimants filed claim petition in lieu of death of their son deceased Mohd. Abrar. According to them the deceased at the time of accident was 18 years of age and he used to earn Rs. 70/- per day. 3- The owner of the offending truck contested the claim petition by filing written statement and alleged that the accident has occurred due to bursting of brake pipe of the truck and there was no any fault on the part of the driver. He admitted that the deceased was doing labour work on the said truck. 2 4- The opposite party No.2, National Insurance Company, has alleged that the truck was not having valid documents and the driver was also not possessing valid and effective driving license. Therefore, there was breach of insurance policy and the insurer is not liable to pay compensation. 5- The learned Tribunal on the pleading of parties framed relevant issues in the claim petition. Thereafter parties adduced evidence in support of their case. The learned Tribunal after hearing learned counsel for the parties and considering the entire material available on record, awarded a sum of Rs. 2,50,000/- as compensation along with interest @ 6% per annum from the date of filing the petition, payable by National Insurance Company. 6- Feeling aggrieved, the National Insurance Company has preferred this appeal before this Court. 7- Heard Sri Lalit Belwal, learned counsel for the appellant and Mr. Rajendra Dobhal, learned counsel for the respondent/owner of the offending truck involved in the accident and perused the record. 8- The learned counsel for the appellant has pressed this appeal only on the point that the truck in question was not having insurance cover at the time of accident, therefore, recoverable right should be given to the insurance company against the owner of the truck. 9- The learned counsel for the owner of the offending truck on the other hand opposed the above submission and supported the impugned judgment and award passed by the Tribunal. 3 10- Perusal of record reveals that the Tribunal has framed issue No.2 on the point of insurance coverage. The learned Tribunal has relied on paper No. 47-C/2, which is cover note issued by the National Insurance Company. This document indicates that Rs. 50/- were paid as transfer fee and name of Sri Sunil Pal was entered in it. The insurance policy, paper No. 61-C/1 has also been filed, which clearly indicates that the insurance policy was effective with effect from 16-10-98 to 15-10- 99. The owner of the offending vehicle did not file any insurance policy, which may show that the policy was renewed thereafter. The accident took place on 23.3.2000, therefore, the truck in question was not having insurance coverage at the time of the accident. Hence, the learned Tribunal fell in error in holding that in the cover note Sunil Pal was insured in place of previous owner by obtaining transfer fee of Rs. 50/- as such the protection of insurance policy can be given to him for the period 24.6.99 to 15.10.2000. Since the owner of the offending vehicle could not adduce any evidence before the Tribunal that he in fact obtained the insurance policy with regard to the vehicle involved in the accident for the period during which the accident took place, the liability to pay the compensation would be of the owner of the vehicle and not of the insurance company and recoverable right should be given to the insurance company against the owner of the vehicle in question. 11- Learned counsel for the appellant also submitted that the Executing Court should be directed to initiate the recovery proceeding in accordance with the observation made by the Hon’ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Shri Nanjappan and Ors. reported in 2004(1) Supreme 1061. 4 12- I have gone through the above cited ruling. The Hon’ble Apex Court has held that for recovering the amount from the insured, insurer may initiate a proceeding before the concerned Executing Court. The observation made by the Hon’ble Apex Court is as below:- “While setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur’s case that the insurer shall pay the quantum of compensation fixed by the Tribunal about which there was no dispute raised, to the respondent- claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached as a part of the security if necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executive Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.” 5 13- Accordingly, the appeal is allowed. The impugned judgment and award dated 1-10-2005 is modified upto the extent that the National Insurance Company will pay the awarded amount of compensation to the claimants, but the Insurance Company is given the recoverable right against the owner of the vehicle in question. It may initiate the recovery proceeding before the Executing Court in view of the observation made by the Hon’ble Apex Court in the Nanjappan case (supra). (B.C. Kandpal, J.) ISB 6