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2012 DIGILAW 149 (CHH)

UNITED INDIA INSURANCE CO. LTD. v. KUNTI BAI

2012-06-12

G.MINHAJUDDIN, I.M.QUDDUSI

body2012
ORDER As per Hon'ble Dr. I.M. Quddusi, J.:- 1. This appeal has been filed by the appellant/Insurance Company against the award dated 26-03-2007 passed by the IXth Additional Motor Accident Claims Tribunal, (F.T.C.), Dist. Durg (C.G.) (hereinafter called 'the Claims Tribunal') in Claim Case No. 147/2006 so far as it relates to fastening the liability upon the appellant/Insurance Company to pay and recover the compensation from the owner/respondent No. 7 of Dumper bearing registration No.AP-09-U-5752 (hereinafter called 'the offending vehicle'). 2. Brief facts of the case, as per version of the claimants, are that the deceased Lakhanlal, husband of the claimant/respondent No.1 herein and father of claimants/respondents No.2 to 5 herein, was in occupation of selling chilly, tamarind, vegetable etc., in the markets of villages Demboria, Supela, Ruabandha, Patan, Ranitarai and adjoining villages. On the morning of 13-042005 at about 10:00 a.m., the deceased Lakhanlal was going to sell tamarinds in the market situated near Boria Gate Bhilai from village Barbaspur on his bicycle at his left side. At that time near Patoura, Police Station Utai, Tehsil Patan, the offending vehicle bearing registration, No. AP-09-U-5752, owned by non-applicant No.1/respondent No.7 herein, insured by non-applicant No.3/appellant herein, which was being driven by non-applicant No.2/respondent No.8 herein in a rash and negligent manner, dashed Lakhanlal as a result of which he died on the spot and his bicycle was got damaged. At the tune of accident, the deceased Lakhanlal was earning Rs.200/- per day. 3. The claimants being legal heir of the deceased had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') before the Claims Tribunal claiming a total amount of compensation of Rs. 16,86,800/- under various heads for the death of the deceased. 4. Learned Claims Tribunal on a close scrutiny of evidence led, material placed and submissions made by the parties, has awarded a total amount of Rs.6,61,500/- fastening the liability upon the non-applicant No.3/appellant/Insurance Company to pay compensation to the claimants/respondents No.1 to 5 along with interest @ 6% per annum within two months from the date of order till its realization and recover the same from non-applicants No. 1 & 2/respondents No. 7 & 8 jointly or severally. 5. We have heard learned counsel appearing for the parties and perused the impugned award as well as the record of the Claims Tribunal. 6. 5. We have heard learned counsel appearing for the parties and perused the impugned award as well as the record of the Claims Tribunal. 6. Firstly, there is no law under which the order of pay and recover could be made. 7. Secondly, the law laid down by the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and others (2004) 3 SCC 297 cannot be treated as a precedent as already mentioned in the judgment by the Hon'ble Apex Court in Swaran Singh case (2004) 3 SCC 297 (Supra). 8. Thirdly, in the case of National Insurance Co. Ltd. Vs. Parvathneni and Another (2009) 8 SCC 785, the Hon'ble Apex Court has already held that order of pay and recover cannot be passed and the matter has been referred to the larger Bench. 9. Fourthly, the insurance policy made by the United India Insurance Company Limited was forged policy on the basis of which the liability has been fastened upon the appellant/insurance company. The offending vehicle was not insured during the period when the accident had taken place. 10. In the facts and circumstances mentioned above, we are of the opinion that liability could not have fastened upon the appellant/insurance company to pay the amount of compensation to the claimants and recover it later on from the owner of the vehicle. 11. In the result, we allow this appeal and set aside the part of impugned award by which the appellant had been directed to pay the amount of compensation to the claimants and recover the same from owner of the offending vehicle. However, it will be open to the claimants to recover the amount of compensation from the owner of the offending vehicle. 12. The address of the owner of the offending vehicle, who is present in person, is as follows:- "P. Ravi Kumar, S/o Ramanaiah Naidu, 26-2-643, 6th Street Jyothi Nagar, Nellore – 4 Mob-9440126189" 13. The owner of the offending vehicle has been examined by this Court under Order 21 Rule 41 of the Cr.P.C. He has stated that he is not having any movable or immovable property as he has already sold the offending vehicle. 14. The owner of the offending vehicle has been examined by this Court under Order 21 Rule 41 of the Cr.P.C. He has stated that he is not having any movable or immovable property as he has already sold the offending vehicle. 14. It will be open for the MACT concerned to execute the impugned award on moving application by the claimants even by issuing arrest warrant as in the appeal the owner of the offending vehicle i.e. respondent No.7 had not turned up unless the non-bailable warrant of arrest was issued against him. 15. The amount which has already been deposited by the appellant/insurance company shall be allowed to be withdrawn by it. 16. No order as to costs. Appeal Allowed.