.Y;^<^UV/\^-^V-<>'<^Y/\jTjVLi'V'l./\.-<^-^'C ^'^-'^•O'^^^' ^. J;. IN THE HIGH COURT OF CHHATnSGARH AT BILASPUR MISC. APPEAL N0. ^o ^ OF 2010 Oivision Bendt A —--,^.^,.'- ^•'^"" ..^ €^] '^ ''^ ^Respondents J Claiman^J?)| ^Vf •^ >.•'^y^ >^y\^ ^y ^•' y /6wner ^plSivisional Manager. The Oriental Insurance company, Geetanjali Bhawan Main Road korba C.G. Versus Tara Bai W/o Teej Das aged about 40 years bas S/o Teej bas aged about 23 years Jagdish &as S/o Teej bas aged about 21 years Shiva Das S/o Teej bas aged about 19 years All RespondentsareR/oVillage Ucchpinda Th. +P.S. babhra pistrict - Janjgir - Champa C.G. Chakrdhar bas S/o Vikram Das Aged about 35 years R/o Uchhpindd Th. +P.S. babhra bistrict - Janjgir - Champa C.G. MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACY. 1988 AGAINST THE ORDER/AWARb DATED 17.12.2009 PASSED INC.T.NO. 07/2009 ByLEARNEDUPPER MOTOR ACCIDENT CLAIMS TRIBUNAL. SHAKTEbISTRICT JANJGIR - CHAMPA (CG) PRESIDEb OVER BY SHRI A.K. PRADHAN ^W^^jiSS^ HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (0 No. 669 of 2010 APPELLANT RESPONDENTS fClaimants) Divisional Manager, The Oriental Insurance Company. Versus Tara Bai & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT DB: Hon'ble Shri Justice I.M. Quddusi & Hon'ble Shri Justice N. K. Agarwal. Present : Shri Ghanshyam Patel, Advocate for the appellant. Shri VK Agrawal, Advocate for respondent No. 1 to 4. ORAL ORDER (Passed on 28th day of September, 2010) Per : I.M. Quddusi, J. 1. The appellant/insurance company has assailed the djrection given by the Additional Motor Accident Claims Tribunal, Sakti, Distt. Janjgir Champa (for short 'the Tribunal') in claim case No. 07/09 on 17.12.2009, directing it to first pay the award amount to the claimants and then to recover it from the respondent No. 5 i.e. owner ofthe vehicle. 2. Brief facts of the case according to the appellant are that, on 05.07.1998, while Teej Ram (sjnce deceased) was driving the Tractor bearing registration No. MP-26-C-6858 owned by the respondent No. 5 and ploughing the filed, the said Tractor turned turtle and the deceased came under the Tractor, as a result of which he succumbed to the injures sustalned in the said accident. 3. The claimants preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, daiming compensation to the tune of Rs. 20,50,000/~ for the death of deceased in the said accident. 4. The Tribunal, on a close scrutjny of the evidence led by the parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 3,82,000/- as compensation in favour of the claimants and as against the owner of the Tractor, exonerating the appellant/insurance company from jts liability to pay compensation with a direction to the appellant/insurance company to first pay the award amount to the claimants then to recover it from the respondent No. 5 i.e. owner of the Tractor, holding the driver of the offending vehicle was not having valid and effective driving license at the time of accident. 5. The Tribunal concerned had framed as many as six issues. One of the issue i.e. issue No. 3 was whether the deceased Teej Ram was having valid and effective driving license at the time of accident. On this issue, though the Tribunal has not specifically given its finding, but, the result has been mentioned in negative, meaning thereby, according to the Tribunal, the deceased was not having valid and effective driving license at the time of accident. This finding has been assailed by the learned counsel appearing for the claimants, though no appeal has been filed. However, we have perused the lower court's record, by which it appears that, the insurance company has I ^tea. !i 1 <""7/ •^\ • A-., .,—•' ,.;; not proved that the deceased was not havlng valid and effective driving license though burden of prove of the same was on the appellant/insurance company, as they had raised on the appeal. Therefore, we are of the opinion that the Tribunal hasgiven a perverse finding, but, since no appeal has been filed by the owner of the vehicle as the award in fact is against the owner and only the insurance company has been directed to first pay the award amount to the claimants and then to recover it from the owner of the Tractor. 6. The decision of Tribunal, directing the appellant/insurance company first to pay and then to recover the same from the owner of the vehicle, is inconsonance with the judgment of Supreme Court in case of National Insurance Co. Ltd. v. Swaran Singh & Others1, in which the Supreme Court has held in para 83 of its judgment as under: "83. Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does not mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail 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 drawn by the learned counsel for the petitioner, 1 2004(3)8cc 297 g^sax; 7. which is in negative language may now be noticed. The said provision must be read wlth sub-section (1) thereof. The right to avoid Ijability in terms of sub- section (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 the facts and circumstances of the case, the Tribunal has power to direct them to satisfy 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." .,• In viewof above, we do not find any illegaljty in the award passed by the Tribunal. The appeal being devoid of substance is liable to be and is hereby dismissed. No order asto costs. Sd/- LM.Quddusi Judge Sd/- N.K. Agarwal Judge Sahu to