Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 49 (MP)

NATIONAL INSURANCE CO. LTD. v. RAMKALIBAI

2011-01-11

P.K.JAISWAL

body2011
JUDGMENT : P.K. Jaiswal, J. This appeal is filed by the insurance company against the award dated 19.9.2008 passed by the Member, M.A.C.T., Shujalpur District, Shajapur, whereby learned Tribunal awarded a sum of Rs. 1,77,000 as compensation to the respondent Nos. 1 and 2 and exonerated the appellant insurance company, but directed it to pay the amount of compensation to the respondent Nos. 1 and 2 and thereafter recover the same from the respondent Nos. 3 and 4, i.e., owner and driver of vehicle. The learned counsel for the appellant submits that at the time of the accident on 12.5.2006, the tractor-trolley bearing registration No. MP 42-M 0340 was registered for agricultural purposes. The deceased Radheshyam was travelling in the tractor-trolley as gratuitous passenger and in view of law laid down by the Full Bench of this court in the case of Bhav Singh Vs. Smt. Savirani and Others, (2008) ACJ 1043, the insurance company has rightly been exonerated from paying the compensation to the claimants, but the learned Tribunal committed a legal error in directing the insurance company to pay the amount of compensation and to recover the same from the owner of vehicle. 2. In support of his submission, learned counsel for the appellant drew my attention to the statement of Suresh, AW 2, and submitted that Suresh and deceased Radheshyam were working as labourers and they were doing the work of lifting the sand from the river bed. At the time of accident the tractor was transporting the sand, which is a commercial purpose and, therefore, in view of law down by the Apex Court in the case of National Insurance Co. Ltd. v. Parvathneni, MACD 2009 (SC) 552, the insurance company has no liability to pay compensation to the claimants nor the insurance company can be compelled to make payment and later on recover it from the owner of the vehicle. Paras 7, 8 and 9 are quoted hereinbelow: (7) No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle. [See for example National Insurance Co. Ltd. Vs. Yellamma and Another, (2008) 7 SCC 526 , Samundra Devi and Others Vs. Narendra Kaur and Others, (2008) 9 SCC 100 , Oriental Insurance Co. [See for example National Insurance Co. Ltd. Vs. Yellamma and Another, (2008) 7 SCC 526 , Samundra Devi and Others Vs. Narendra Kaur and Others, (2008) 9 SCC 100 , Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909 (SC) ; The New Indian Insurance Company Vs. Darshana Devi and Others, (2008) 7 SCC 416 . (8) We have some reservations about the correctness of the aforesaid decisions of this court. If the insurance company has no liability to pay at all, then in our opinion, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. When a person has no liability to pay at all, how can he be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all. (9) Hence, we direct that the papers of this case be placed before the Hon'ble Chief Justice of India for constituting a larger Bench to decide the following questions: (1) If an insurance company can prove that it does not have any liability to pay any amount in law to claimants under the Motor Vehicles Act or any other enactment, can the court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle? (2) Can such a direction be given under Article 142 of the Constitution and what is the scope of Article 142? Does Article 142 permit the court to create a liability where there is none'? 3. On the other hand, learned counsel for the owner and driver drew my attention to written statement filed on behalf of respondent Nos. 3 and 4 and the statement of Hemraj, NAW 1, and submitted that work of construction of well over the agricultural field was going on and for that purpose, the respondent No. 3 was transporting the sand, the learned Tribunal committed an error in exonerating the insurance company. 3 and 4 and the statement of Hemraj, NAW 1, and submitted that work of construction of well over the agricultural field was going on and for that purpose, the respondent No. 3 was transporting the sand, the learned Tribunal committed an error in exonerating the insurance company. He further contended that at the time of accident, tractor was used for agricultural purpose as per terms of the insurance policy, the impugned award by which the insurance company was exonerated is contrary to the evidence on record and prays for setting aside of the award. 4. As per statement of Hemraj, NAW 1, it is very clear that deceased Radheshyam was working with him as labourer and their main work was to lift the sand from river bed. He nowhere stated that construction of well is going on in the agricultural field of the owner and the finding recorded in paras 8 and 9 of the impugned award is just and proper because the tractor was plying in violation of terms and conditions of insurance policy. This question is considered by the Full Bench in the case of Bhav Singh, 2008 ACJ 1043 (MP) and in view of law laid down by the Apex Court in the case of Parvathneni, MACD 2009 (SC) 552, this court is of the view that the learned Claims Tribunal committed an error in directing the insurance company to pay the amount of compensation and recover the same from owner and driver of the vehicle. For the above-mentioned reasons the appeal filed by the insurance company is allowed and it is directed that any amount deposited in pursuance to the impugned award shall be recovered from the owner of vehicle. No order as to costs.