~? o ^ f-y^ ;:^. IN THE HIGH COURT OF JUDICATURE AT BILASPUR [CHHATTISGARH] MISC.APPEAL. N0-t-11 OF 2003 ..^- APPELLAN'iy TNSLJRER / National Insurance Co. Ltd. through it7s Branch Manager, Branch Office, Bilaspur (Chhattisgarh). '^ A^V~RESPONDENTS/ ^[DRIVER] RESPONDENT/ ,[OWNERJ [CLAIMANT] , ZE_^S U S 6> s LakhanLal Nishad S/bPaklu Ram @ Laxmichand Nishad, aged about 22 years, R/o Village - Badgaon, Post Birkoni, P.S.-Tumgaon,Tah. & Distt, Mahasamund [C.GJ 2. Santosh Kumar Nishad, S/o Paskluram @ Laxmiehand Nishad, aged about 36 years, R/o Village -Badgaon, Post Birkoni, P.S.-Tumgaon, 'Tah. & Distt, Mahasamund [C.GJ 3. Kanhaiya Lal S/o Kheduram, Chakradhari, aged about 35 Caste Kumhar, R/o Raipura Mahadevghat Rd, Raipur [CG] ,1 m ;i APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 c^ HI@H GOURT OF CHHATTISQARH ATBULASPUR M.A.No. 714 of 2003 APPELLANT Insurer National Insurance Co. Ltd Vwaus RESPONDENTS : LakhanLat Nfetwd & Others APPEAL UNDER SECTION 173 OF THE h^OTOR VEHICLES ACT (SB: Hon'bteMr.N.K.A^rwal.J^ Present : StwSantayK/^rawal.Advocatefortheappellant. .ORDER 1. •\^ ^assed on 3m <toy ofSfeptenaber, 28W) Heard on M(C)P No. 1228/03, applteatlon for conctonaHon of delay in ffling the appeal. On due consideration, 1 am satisfNKt that ttie counsel for appellant is sycceeded in explaiNng the delay caysied in fNing the appeal. Accordingly M(C)P No. 1^8/03 isadtowedand delay is accordingty eondoned. 2. Heayd on admission. 3. The appellant/insurance company has assatted the directton given by the Ist AddiUonat Motor Accident Claims Tribunal, Raipur (for stiort the Tribunal') in clalm ease N©.63/QQ ®n 03.04.2003, djrecting it to firet pay the award anioimt to ttw claimant and then to recover tt from t»erespondent No. 1 & 2 i.e. owner and driver of the motorcycte. 4. Brief facts of the case accorcBng to the appellant are tt^at, on 30.10.2001, while the respondent No. 3 i.e. clahnant was -l^liiSBBII .II^^Bi <s^s ^- •^ X. traveling in Boxer Motoreycte bearing registratton No. CG- 06/0304 being driven by the respondent No. 1, the said h4otopcycte tumett turtte due to whteh the daimant sy^ained nfiultiple injuries. 5 The claimant preferred an application b^ore the Trlbunal ynder Sectfon 166 of ie Motor Vehieles Act, daimjng compen^rtion to the tune of Rs. 5.30.000/- for the injuries siistained by him on account of the said accictent. 6. The Tribunal, on a ctose 8©rutiniyof the evidence led by the parties, th®material availabte CTI the record, and submissions of the parties, awarded total amoyi'rt of Rs. 46,4®5/- as compensatlon In favour of the claimant/respondent No. 3 and as agalnst the owner and driver of the fnotoreyGle, exonerating the appellant/insurance company frem tts HabNtty to pay compensation wtth a directjon to the appeltantfmsuFanGe company to first pay the award amount to the clawnant ^ien to recover tt from the respondent No. 1 & 2 i.e. owiier and driver of the motorcycle, hokling the driver of the offeneting veNcte was not havmg vaUdand effecth^ driving lioense at the time of accident. 7. I have hearcl the leamed counsel appeariiig for tie appellant and perused the award impugned. 8. The deciston of Tribunal, dlrecMng the appellantfinsurance company first jto pay and then to recover the same from the driver/owner of the vehicle, is tnconsonance wlth #ie judgment of Supreme Court In oase of Nrtional Insurance Go. V:'1 Ltd. v. Swaran Singh & Othars1, tn whteh the Supreme Court has hekl In para 83 and 110 (x) of tts judgmerrt as under: "83. Sub-sectton (^ of Section 149 whleh hnposes a liability on ttie insutw musl also be given tts fc<l effect. The insurance company may n<?t be liatete to sartisfy ttie decree and, therefore, its liability may b®zero btrt tt ctoes not mean that it did not haw (nWal HaMtify srt aH. Thus, ifthe insurance company is mad®liabte to pay any amount, tt can wcover the entfro amourrt paid to the ttiird parfy on behaW of the assured. If Ihis inteipr^ation fe no>t giventothe beiEieficent provtetons of the Act having regard te its purport and otoject, we feU to see a si^itton where beneficwt pre^sieiis can be ~ given effeet to. Sub-secBon (7) of Sectien 1^ ef the Act, to ¥Khfeh poirrted attentton of the Court hs^ Iwen drawn by the tosffned coynsel for the petHieRw, which is hi negaUve language may now be notiead. Th»said provision must be read with sub^eeBon (1) thereof. The right to avoM tobitify in terras of sub-seeBon <2) of Section 149 te restricted as has be»n discussed hereinbefore. tt ts on®thing to say that tt»insyrance companies are entitled to naise a defoace but it is another ttiing to ssy ttiat despite the fact tl'wat ite defence has been accepted having regard to tie fcicts and dreumslances af the case, the TNbunal ta®pcwer to direct them^tp satisty the cteCTee at Ifce firat instance and ttien direct recovery of the sam®froin the owner. These two mattere stand apart and require cof»te)duat reading. Wlien admlttedly no Ucenw was ^atalned toy a <Wver: 110. The Summary ef our fitidiCTgs to ttie various tesues as raised (n these p^ifions te as fotlows: XXX XXX )0©( l2004(3)SCC297 ^^-.^^ y^s^ "^ ^ 9. (x). Where on adjudteatton of ttiedaim under th®Act the Tribunal arrives at a conclusfon that flw hisureF has satistadorily proved tts ctofence hn accordance with the provisions of secHon 149^) raad with sub-section (7), as interpreted by this Court sdaove, tie Tribureil can direct that the insurer fe liabte to be retmbuised by the insured for ttie compensatton and ^ier amourds which it has been compelled to pay to the ttiiid party under the award of tfie tribynal. Such determtnafion of etaini by the Tribunal will be wiforceabte and the mon^ found due to the Insurer from the insured witl be reeoverabto on a certifteate issued by the Tribunal to the Goltecter iii the same manner under Section 174 of the Act as arreais of land revenue. The certificate will be Isswd for the recovery as arreais of land revenu®enfy N?, t® required by sub-sectton (3) of Sectfon 168 ofttie Act tlie tnsured fatls to deposlt the amounfrawaKtod hi fevour of the insurer Wthin ttiirty days from the date of announcement of the award by th®Tribunal". In view of above, 1 do not find any Ulegality in the award passed by the Tribunal. The appeal being devold ofsubstancels liable to be and is hereby dismissed at admisslonstage. st Sd/- N. K. Agarwal Judge