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2006 DIGILAW 166 (JK)

National Insurance Co. Ltd. v. Omkar Singh

2006-07-03

J.P.SINGH

body2006
1. National Insurance Company Limited has questioned award dated 27-01-2003 of Motor Accidents Claims Tribunal, Jammu, made in File No.654/Claims titled Omkar Singh and another versus National Insurance Company Ltd. and another, awarding an amount of Rs.3,65,000/- as compensation to respondents-1 and 2, who are the parents of one Mohan Singh, who, while travelling in truck bearing registration No.7082/JKC from Kargil to Srinagar, died on spot, when the truck, driven rashly and negligently by its driver, rolled down into a nullah near Sumbal. 2. The claim petition of the claimants/respondents-1 and 2 was contested by the appellant. The contest gave rise to the following issues: "1. Whether an accident involving death of deceased Mohan Singh occurred due to negligence of the driver of the offending vehicle bearing registration No.JKC 7082? .....OPP 2. In case issue No.1 is proved, what compensation the claimants are entitled to? .....OPP 3. Whether the driver of the offending vehicle did not possess a valid driving licence and, therefore, the respondent No.2 is not liable to indemnify the owner? ......OPR-1 4. Relief O.P. Parties. 3. Learned counsel for the appellant has questioned the award only in so far as it directs the appellant to satisfy the award, even after holding that the driver of the truck had been driving the vehicle in violation of the terms of the Insurance Policy and the insurer was not liable to indemnify the insured. Learned counsel refers to National Insurance Co. Ltd. versus Bommithi Subbhayamma and others, reported as (2005) 12 SCC 243. 4. None has appeared to oppose the appeal of the appellant. 5. I have considered the submission of Shri Jain, learned counsel for the appellant, and gone through the judgment cited by him as also other judgments, which have been referred in the judgment cited by Shri Jain. 6. The Claims Tribunal, while deciding the case of the claimants, had recorded a specific finding, which reads thus: "In this case the offending vehicle is definitely a goods vehicle and its driver used if for a purpose not allowed by permit and as such violated the terms and conditions of the insurance policy, the insurer is not therefore, liable to indemnify the insured. 7. After recording this finding, the Tribunal referred to New India Assurance Co. 7. After recording this finding, the Tribunal referred to New India Assurance Co. Ltd. versus Kamla, reported as AIR 2001 SC 1419, to say that the amount paid by the insurer to the dependents of the victim could be recovered from the owner of the offending vehicle by Executing the award against him, is a clear position of law. The Tribunal, however, while passing the award, did not say anything as to whether or not the appellant could recover the award amount from the owner. 8. Shri Jain had tried to urge that in view of the law laid down in (2005) 12 SCC 243, the appellant/insurer cannot be saddled with the liability of paying the amount to the claimants. I am not inclined to accept this proposition of law projected by Shri Jain, because of the view taken by the Supreme Court of India in National Insurance Co. Ltd. Versus Baljit Kaur and others, reported as (2004) 2 SCC 1 and National Insurance Co. Ltd. Versus Challa Bharathamma and others, reported as (2004) 8 SCC 517. It would be profitable to refer to paragraph 13 of the judgment in National Insurance Co. Ltd. Versus Challa Bharathamma and others case, which reads thus: "13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned 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 claimants, owner of the offending vehicle shall 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 Regional Transport Authority concerned. Before release of the amount to the claimants, owner of the offending vehicle shall 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 Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the 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 realisation by the disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. 9. The judgment cited by Shri Jain does not deal with aforementioned aspect of the law laid down by the Supreme Court of India calling upon the insurer to pay the award amount to the claimants to recover it later from the owner by executing the award. 10. For all what has been said above, while rejecting the submission of Shri Jain that the insurer was not liable to satisfy the award in the first instance, I would modify the award of the Tribunal by providing that the appellant shall be entitled to recover the award amount from the owner of the truck by taking out execution proceedings of this award. The Executing Court/Tribunal shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case of any default, it shall be open to the Executing Court to direct realisation by disposal of the movable and immovable properties of the owner. 11. The amount deposited by the appellant in this Court is ordered to be released by Registrar Judicial in favour of the respondents-1&2/claimants, after their proper identification, alongwith interest accrued thereon, in accordance with this judgment, minus the amount already received by them during the currency of proceedings. 12. As none has appeared for the respondents, Registrar Judicial shall inform the claimants regarding orders passed in this appeal.