^ a y IN THE HON'BLE HIGH COURT OF CHHATTCSGARH AT BILASPUR 1^o0 MISC. APPEAUC) N0. OF 2009 C.l'^ ^^-1 MISCELLANEOUS APPEAL UNDER SECTCON 173. MOTOR VEHICLES ACT. 1988 ADpellant ^Non-Applicant No. 3 ^^^s^ Respondents United India Insurance Co. Ltd. Branch Office, Raigarh, through the Divisional Manager, United India Insurance Company Limited, Korba, Distt. Korba (CG) Versus Dinesh Yadav, S/o Ramanand Yadav, aged 32 yeors 2. Ramnand yadav,, S/o Gurunani Yadav, aged 50 years (Both R/o Village Chandrapur. Tahsil babhra, bistt. Janjgir- Champa) Non-ADplicants no. 1 <& 2 bere Uraon, S/o Sadan Uraon, aged 50 years ^" ^ 4; Smt. Ratiyo Bai Uraon, W/o bere Uraon, aged 45 years (SI.No. 3 to 4 R/o Village Chandrapur, Tahsil babhra, bistt. Janjgir-Champa) Claimants HI6H: COURT OF CHHATTISSARH AT B£L^SPUR fiWlSION^ENCH: HON'BLE UK^.M.QUuDU^Ia HON'BLE MR.6ULAM MINHAJUDDIN. JJ ^ppejlant Ressondents Respondersts Appeiiant Respondents t^.A. rd N9.1599/2009 United Indialnsurance Company Ltd. Vs Dinesh Yadav and others M. ^. [c]_No,l600/2009 United India Insurance Company Ltd. V's Dinesh Yadav and others & M_A_MJ^o.l60l/?OQl Vs United India Insurance Company Ltd* Dinesh Yadav and others Presem^ Mr. Sanjay S Agarwal, Advocate for the appeilant in ait the appeais. Mr»Amit Kumar, Advocate for respondent Nos.l d 2 in ail the appeals. Mr, Basant Dewangan, Advocate for respondsnt-claimants in a!l the appeais. .OR.i^RjOrd). (16th December. 2011) 1. M.A. (C) No.1599/09 arising of out of Ciaim Case No.12/09,. M.A. (C) No.1600/09 arising out of Claim Case No.13/09 and M.A. (C) No.1601/09 arising out of Claim Case No.14/09 are being disposed of by this cornmon order as all these appeais arose out of the same accident. 2, Chalienge in the above appeals is to the awards dated 22.10,2009 passed by the learned Additionai Motor Accidents Claims Tribuna! Sakti, Distnct Janjgir-Champa (for short 'the Claims Tribunai'') in Claim Cases NoJ2/09, 13/09 <& 14/09 thereby partly Gliowing claim applications of the ctaimants, awardina fts.4,35,000/-, Rs.1,32,000/- <& Rs.1,32,000/- respectively as compensation and directing the appeiiant herein to first pay the amount of compensation to the cbimants then recover the same from the owner & the driver of the offending vehicle. ^&- 3. Facts, in nutshell, are that on 3,1.2009 few persons were going in the tractor-trotiey bearing registration number C&11-A-6433 & C611-A-6434 respectively towards Timariaga from Viiiage Chandarpur. On the way, when they were crossing Mahanadi River Bridge, the said tractor-troiiey fell in Mahanadi River due to rash and negiigent driving of its dnver as a result of which three persons travelfing in the said truck died and others have sustained grievous injuries. Report of the accident was iodged in the Po!ice Station Chandarpur. The dependants of deceased fiaribo Uraon, Santosh Uraon <& Shyamo Uraon, who died in the said accident, fiied separate claim applications under Section 166 of the Motor Vehicies ^ct, 1988 (for short lthe Act, 1988') seeking compensation to the tune of Ks.29,70,000/-, Rs.30,30,000/- & 30,30,000/- respectively /'nfer aiia on the ground that they were dependent on the deceGsed, who was the sole earning member in the family, and due to his death, they have suffered loss of income. 4, Leamed counsel for the appeiiant-Insurance Company has submitted that in the facts and circumstances of case the deceased persons cannot be treated as third party and thus, the Claims TribunGJ has erred In passing the direction regarding pay and recover. 5, On the other hand, learned counsel for the respondents have supported the impugned awards. 6. We have heard learned counsel for the parties, perused the record of the Claims Tribunal as wel! as the impugned awards. 7. It is true that the Hon'ble Apex Court in the matter of Nationai Insurance Company Vs. Swarn Singh & others reported in (2004) 3 SCC 297 has directed that the Insurance Company shail first pay the amount of compensation to the claimants and thereafter recover the same from the owner of vehicle. The judgment of the Hon'ble Supreme Court in the matter of Swarn Singh (supra) is related to third party accident, whereas the present is not a case of third part/ accident, In the present case the deceased ^persons were occupants of the tractor-troliey which was being piiedin violation of conditions of the insurance poiicy as at the time of accident the deceased traveling in the vehicle in question, whereas there ^^ ^ &.'^, '^ °^^^/ .-.•<^ was no sitting capacity in the vehicle in question, Therefore, the principtes iaid down in the Swarn Singh's case (supra) would not be appSicable in the facts of the present cas©. Even otherwise, in the case of Ncits@nal £nsuranc@ CQ. Ltd. vs. Parvathnens and another reported in (2009) 8 SCC 785 the question regarding ipay and recover' has been referred to the Larger Bench of the Hon'ble Apex Court for decision. 8. Thus, the impugned award of the Claims Tribunal, at one hand exonerating the Insurance Company from its liability and at the sarne time directing to pay the claimants and thereafter recover from the owner, is erroneous. 9< In the resuit, the appeais are allowed and the impugned awards directing the appellant-Insurance Company to first pay the compensation and thereafter recover the same from the owner A driver of vehicle-in- question is herebyset aside and it is he!d that the appeiiant " Insurance Company is not liable to pay any compensation involved in the impugned award to the cbimants and the same shatl be paid by the owner & driver of vehicie-in-question only. In case any amount deposited by the appeliant- Insurance Company has been withdrawn by the cbimants/ it wili be open for the Insurance Company to recover the same froiri the owner of vehicle, However, if the amount, so deposited, has not been withdrawn so far, the Insurance Company shail be aliowed to withdraw the same. Rest of the conditions and findings of the impugned award are hereby confirmed. It is hereby clGrified that the ciaimants are free to execute the award aaainst the owner & driver of the vehicle-in-question. No order as to costs, lO.Certified copy as per ruies. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge