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2009 DIGILAW 500 (AP)

United India Insurance Co. , Ltd. , Warangal v. Jualapally Sudhakar Rao

2009-07-24

R.KANTHA RAO

body2009
JUDGMENT :- This appeal is filed by the second respondent/United India Insurance Company Limited in MA CMA No.927 of 05 challenging the decision of the Tribunal to the extent of the finding that the second respondent has to satisfy the award by paying compensation to the claimant with liberty to realize the amount from the owner of the vehicle, the first respondent. 2. The brief facts relevant for consideration in this appeal are that the claimant received injuries in the accident on 21.10.2001 at 6.00 p.m. while traveling in a trolly bearing No.AP-36-U-4370 and 3471, which is a goods vehicle. It is said that on the way all the passengers traveling in the goods vehicle got down from the lorry and while the claimant was about to get into the trolly, the driver of the vehicle without taking necessary precautions and without observing the passengers who were getting into the trolly, suddenly started it, as a result of which, the claimant fell down on the ground and the rear left wheel of the trolly ran over him in consequence thereof, he sustained grievous injuries. 3. Since the claimant was admittedly traveling in a goods vehicle which is not meant for carrying passengers, there is no dispute about the fact that it is a violation of the stipulation of the policy which exonerates the insurance company from paying compensation to the claimant in the accident wherein the vehicle insured with the appellant-insurance company was involved. The Tribunal gave a categorical. finding that the accident occurred due to rash and negligent driving of the driver of the vehicle basing on the unimpeachable evidence let in by the claimant. The contention of the claimant that since the driver of the vehicle without taking necessary precautions, suddenly started the vehicle while the claimant was about to get into the same, he is a third party and the insurance company is statutorily liable to pay compensation to him, cannot be accepted for the reason that the fact namely the vehicle was suddenly driven when the claimant was getting into the same does not take out the claimant from the purview of the gratuitous passenger traveling in a goods vehicle. Therefore, the first respondent owner is liable to pay the compensation to the claimant and the appellant-insurance company cannot be fastened with liability to pay compensation to the claimant. Therefore, the first respondent owner is liable to pay the compensation to the claimant and the appellant-insurance company cannot be fastened with liability to pay compensation to the claimant. However, the disputed question in this appeal is whether the finding of the learned Tribunal that the appellant has to satisfy the award first and then recover the same from the first respondent owner of the vehicle can be sustained. 4. The learned Counsel appearing for the appellant-insurance company contended that since the insurance company is not liable to pay compensation in view of Section 147 of the Motor Vehicles Act, the direction of the Tribunal to pay and recover the amount is not sustainable. According to the learned Counsel in view of the judgment in the case of National Insurance Company v. Baljith Kaur, 2004 (1) ALD 98 (SC) = 2004 ACJ 428 (SC), such a direction was given, by the Apex Court in exercise of its power under Article 142 of the Constitution of India and the Tribunal has no such power. The learned Counsel submits that it is the exclusive privilege of the Apex Court and is not available to any other Court. 5. On the other hand, the learned Counsel appearing for the claimant/respondent contended that Baljith Kaur's case (supra), clearly lays down the law that it is obligatory on the part of the insurance company to satisfy the award first and then recover the same from the owner of the vehicle and the appellant-insurance company in the present case cannot take any exception to the said legal position. 6. In Baljit Kaur's case (supra), the apex Court held as follows : "It is clear that although the insurance company is not liable to pay the suit claim, all the same it has to first satisfy the suit claim and then recover the amount from the owner or holder of the policy of insurance". 7. As a matter of fact in some of it's judgments the Supreme Court upheld the orders of the Tribunals whereunder the Tribunals directed the insurers to first satisfy the award and then recover the amount from the owner of the offending vehicle. The decisions are referred below. 8. 7. As a matter of fact in some of it's judgments the Supreme Court upheld the orders of the Tribunals whereunder the Tribunals directed the insurers to first satisfy the award and then recover the amount from the owner of the offending vehicle. The decisions are referred below. 8. In National Insurance Company Ltd. v. Savithri Devi and others, 2004 (2) AJR 88 (SC), the Supreme Court having held that the insurance company is not liable to pay compensation to the claimants where the vehicle was driven by a person, who had no valid driving licence clarified that no exception could be taken to the impugned order of the Tribunal that the insurance company is to pay the amount of compensation to the claimant though it can recover the same from the owner of the offending vehicle. 9. In Oriental Insurance Com. Ltd. v. Nanjappan, 2004 ACJ 721 (SC) = 2004 AILD 227 (SC), the Supreme Court following the ratio laid down in National Insurance Co. Ltd. v. Baljit Kaur (supra), held that "the insurer shall pay quantum of compensation fixed by the Claims Tribunal about which there was no dispute raised, to the respondents/claimants within three months. 10. In National Insurance Company v. Kusum Rai, 2006 ACJ 1336 (SC) = 2006 AILD 126 (SC), the Supreme Court held as follows : "Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances in exercise of our jurisdiction under Article 136 of the Constitution of India, but we direct that the appellant to pay the award amount and it may recover the amount from the owner in the same manner as was directed in Nanjappan's case (supra). 11. 11. Again in Oriental Insurance Company Limited v. Zaharulnisha, 2008 ACJ 1928 (SC), it was held as follows : "Though the appellant/insurance company is not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited along with interest from the owner of the vehicle, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. 12. Further in Daddappa v. Branch Manager, National Insurance Co. Ltd., 2008 ACJ 581 (SC) = 2008 AILD 71 (SC), it was held as follows : "However as' the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct the respondent No.1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle, particularly, in view of the fact that no appeal was preferred by him." 13. In New India Assurance Co. Ltd. v. Kusum and others, 2009 ACJ 2655 , the Supreme Court held that : Whenever, thus, a direction to pay the claimants and recover from the owner has been issued by the Tribunal, it must be held to have been done in exercise of its inherent power. 14. In a decision reported in United India Insurance Co. Ltd. v. Swyakantabai, 2009 ACJ 391 = 2008 AILD 108, the High Court of Bombay (Nagpur Bench) held referring to the judgment in the case of Baljit Kaur as follows: "the Supreme Court has in fact laid down a clear law that the insurance company has to first satisfy the award and thereafter recover the amount from the owner by filing an execution application in the Court and the insurance company will not be required to file a separate suit. In view of this, it is clear that although the insurance company is not liable to pay the suit claim all the same it has to first satisfy the suit claim and then recover that amount from the owner or holder of the policy of insurance." 15. In view of this, it is clear that although the insurance company is not liable to pay the suit claim all the same it has to first satisfy the suit claim and then recover that amount from the owner or holder of the policy of insurance." 15. Further the Motor Vehicles Act insofar it relates to the payment of compensation to the victims .of road traffic accidents is beneficent legislation and it has to be interpreted in favour of the victims of the accidents to the extent possible. Introducing the provisions like payment of compensation under no fault liability, removal of time limit for filing the claim application for compensation by the claimants, providing compensation to the claimants basing on structured formula basis, enabling the claimant to file claim application either within the jurisdiction of the Tribunal where he resides or in the jurisdiction of the Tribunal where the respondent resides or within the jurisdiction of the Tribunal where the accident occurs at the option of the claimant is with the object to avoid hardship to the victims of the accident. The object of the Act is not only to provide compensation, which is just and reasonable to the victims of road traffic accidents, but also to make them enjoy the fruits of the awards without subjecting them to long drawn procedure. In none of the decisions referred above, the Apex Court has laid down that the power of directing the insurance company to satisfy the award in the first instance and recover the same from the owner of the vehicle without filing a separate suit has to be exclusively exercised by the Apex Court alone and the other Courts shall not issue any such directions. 16. Further recently in Kusum and others's case (supra) the Apex Court held in specific terms that whenever such a direction has been issued by the Tribunal it must be held to have been done in exercise of it's inherent power. Thus, there need not be any doubt on the aspect that the Tribunal has inherent jurisdiction to issue such direction and whenever such a direction is issued by the Tribunal, it cannot be interfered with, since the said direction is issued to avoid hardship to the claimant in realising the amount of compensation awarded by the Tribunal. 17. Thus, there need not be any doubt on the aspect that the Tribunal has inherent jurisdiction to issue such direction and whenever such a direction is issued by the Tribunal, it cannot be interfered with, since the said direction is issued to avoid hardship to the claimant in realising the amount of compensation awarded by the Tribunal. 17. Turning to the facts of the case on hand, it is highly difficult for the claimant, who is a Branch Post Master, a petty employee in the village to recover the amount of compensation from the owner of the vehicle after long lapse of time. Whereas the insurance company after satisfying the award in favour of the claimant can without much difficulty recover the same from the owner of the vehicle and it need not file a separate suit against the owner of the vehicle. Therefore, in the instant case, the finding of the learned Tribunal is not only in accordance with law laid down by the Apex Court in the above mentioned decisions and also expedient having regard to the facts and circumstances of the present case. 18. For what all stated hereinbefore, the learned Tribunal did not commit any error in issuing the direction to the appellant - insurance company to satisfy the award initially and thereafter recover the amount from the owner of the vehicle despite the fact the insurance company is not liable to pay the amount to the claimant. Therefore, the award passed by the Tribunal on the above mentioned aspect is affirmed directing the appellant-insurance company to first satisfy the award and then recover the amount from the owner of the vehicle. The appeal is dismissed. There shall be no order as to costs.