Case: New India Assurance Co.Ltd Vs. Kusum

2. These appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.  3. We would, however, notice the fact of the matter from CA @ Special Leave Petition (C) No.3372 of 2007.  On or about 14.7.1999, respondent No.3 was traveling in a bus bearing Registration No.PB-23-0189 which met with an accident as a result of which the deceased, Sanjay Kumar, got injured and while being taken to the hospital, he succumbed thereto. The said bus was owned by New Patiala Bus Service (Regd.) Sirhind, the respondent No.4 herein.  Legal representatives of the deceased filed a claim petition before the Motor Accidents Claim Tribunal which by its order dated 4.12.2001 awarded a sum of Rs.2,68,800 by way of compensation. The learned Tribunal held that the driver of the bus had not been possessing a valid driving licence. The primary liability to pay the said amount was held to be that of respondent No.3 and 4, the driver and owner of the bus. The appellant was directed to deposit the amount directing that the company may recover the same from respondent Nos.3 and 4. Pursuant to the said observations, the appellant company made payments to the claimants on or about 15.3.2002 by depositing a sum of Rs.3,03,552/- by cheque.  4. On or about 8.5.2002 in terms of the order of the Tribunal, an Execution Petition was filed, stating :11. That in the claim petition No.82- T/99/26.9.2000 titled as Kusum widown of Sanjay Kumar and others Vs. Raghbir Singh alias Prince and others, the Honble Court was pleased to allow the claim petition partly on 4.12.2001 that the claimants are held entitled to Rs.2,68,800/- as compensation to be shared equally by them. The claimants are also entitled to interest at the rate of 9 per cent per annum from the date of claim application till its actual realization. Though the primary liability to pay the amount of compensation is that of respondent No.1 and 2 jointly and severally, however, it will also be open to the Claimants to recover the same from Respondent No.3 Insurance Company. As already held above, the insurance company would be at liberty to recover the same from Respondent No.1 and 2 in terms already mentioned in the preceding paragraphs.  12. That as per the directions of this Honble Court, the DH/Applicant. Insurance Company has deposited Rs.3,03,552/- in the Honble Court on 30.3.2002 and DRO of this amount has also been issued by this Honble Court.  13. That as per the terms and conditions of the award, the DH/Applicant is entitled to recover the deposited amount of Rs.3,03,552/- along with 9% interest on the deposited amount from 31.3.2002 onwards.  14. That the JDs/Respondents have not paid even single penny to the Claimants or to the DH/Applicant so far.  15. Hence, this execution application and it is prayed that the execution application may please be accepted. The JDs/Respondents may kindly be directed to pay the amount of Rs.3,03,552/- along with future interest at the rate of 12% on the deposited amount till its actual realization failing which the property of the JDs/Respondents may be attached, auctioned to satisfy the award amount and/or JDs/Respondents in the civil person as per law5. On receiving the said notice, the respondent No.3 by filing an objection to the said Execution Petition raised a question that the said Execution Petition was not maintainable and, in fact, a civil suit is required to be filed for recovery of the amount. The said objection of Respondent No.4 was sustained by the Executing Court by a judgment and order dated 12.6.2003, holding :I have considered the aforesaid case law cited at the bar. Authority cited as un-reported Judgment of the Honble Delhi High Court, cited by the learned counsel for Insurance Company - knows decree-holder is not applicable to the facts of the case in hand. In this case, liability of insurance company was limited to the extent of Rs.15,000/- which was ordered to be recovered from the owner and it was observed that on the application of the insurer the claim tribunal is supposed to issue a certificate for recovery of the excess amount paid by the Insurance Company to the collector and collector is supposed to recover the same in the same manner as arrears of land revenue from the insured. Award passed in favour of the LRs of the deceased cant be treated as decree in favour of Insurance Company. Insurance Company can effect recover of the amount from the objector through a regular civil suit as per the observations of our own Honble High Court reported in 2002- 1) PLR Page 39 and (2001-3) PLR Page 813 - Supra by the learned counsel for the objector. Further, proceedings in claim cases are of summary nature for which no strict proof was required but in the regular suit procedure for providing document is strictly as per law. Thus, execution application being not maintainable stands dismissed. However, Insurance Company has an independent right to recover the amount from insured (Owner and Driver) as per award through regular civil suit. File be consigned6. An application under Article 227 of the Constitution of India filed thereagainst by the appellant has been dismissed by the High Court by the impugned judgment upon considering the decision of this Court in Oriental Insurance Company Ltd. v. Shri Nanjappan & Ors. [(2004) 13 SCC 224] , stating :

Reasoning: 7. An owner of a vehicle in terms of the provisions of the Motor Vehicles Act is legally obligated to get the vehicle insured. The rights and liabiltis of the parties to the contract of insurance would be governed thereby subject to the provisions of the Motor Vehicles Act. One of the conditions which would make the insurance company liable to reimburse the owner of the vehicle in respect of payment of the amount of compensation in favour of a claimant is that the driver of the vehicle must possess a valid driving licence. The owner has a duty to see that a vehicle is driven by a person having a valid driving licence. The licence of the driver of the said bus was proved to be invalid. The owner did not raise any contention that he has used due diligence in allowing the driver to drive the vehicle8. The courts, however, keeping in view the social justice doctrine in mind wherefor the Act was enacted and in the interest of the claimants had been passing such orders9. Whenever, thus, a direction has been issued by the Tribunal, it must be held to have been done in exercise of its inherent power. It would be travesty of justice, if the Insurance Company which is directed to pay the amount and then face immense difficulties in executing a decree.