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2012 DIGILAW 35 (CHH)

Oriental Insurance Co. Ltd. v. Bedi Bai

2012-01-25

GULAM MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT : I.M. QUDDUSI, J. 1. This appeal has been filed by the appellant, Oriental Insurance Co. Ltd., against the impugned award dated 18.11.2009 passed by the Ninth Additional Motor Accidents Claims Tribunal (F.T.C.), Raipur (for short, 'the Claims Tribunal') in Claim Case No. 111 of 2007, insofar as it relates to the direction to the appellant insurance company to pay the compensation to the claimants and later on to recover the same from the owner of the offending vehicle, though the appellant insurance company has been exonerated from its liability to pay compensation to the claimants. Brief facts of the case, as per version of the claimants, are that on 25.3.2007, deceased Mohan Tandi was sitting in the auto bearing registration No. CG 04-ZA 0453. Near the Police Station, Modpar in Dongargarh, the said auto turned turtle, as a result of which Mohan Tandi sustained grievous injuries and died on the spot. The report of the incident was given in the Police Station, Dongargarh and an offence was registered under sections 279, 337 and 304-A of the Indian Penal Code against the non-applicant No. 1/driver. At the time of accident, the deceased, who was aged 26 years, was working in Fairas Fooders India, Raipur and was earning Rs. 3,200/- per month. 2. The claimants being legal heir of the deceased had filed a claim petition u/s 163-A of the Motor Vehicles Act, 1988 (for short, 'the Act') claiming a total compensation to the tune of Rs. 9,00,000/- for the death of the deceased. 3. Learned Claims Tribunal on a close scrutiny of the evidence led, the material placed and submissions made by both the parties partly allowed the claim petition and awarded a sum of Rs. 4,38,000/- as compensation against non-applicant Nos. 1 and 2, driver and owner of the offending vehicle, jointly and severally, exonerating the appellant insurance company. However, non-applicant No. 3, insurance company, shall pay the amount first and later on recover the same from the owner of the offending vehicle. 4. We have heard the learned counsel appearing for the parties and perused the record of the Claims Tribunal. 5. The instant case is not a case related to third party accident. The deceased was a gratuitous passenger. The Tribunal has held that the driver of the offending vehicle was not having a valid and effective driving licence. 4. We have heard the learned counsel appearing for the parties and perused the record of the Claims Tribunal. 5. The instant case is not a case related to third party accident. The deceased was a gratuitous passenger. The Tribunal has held that the driver of the offending vehicle was not having a valid and effective driving licence. Hence, the appellant insurance company is not liable to pay compensation. Despite that the appellant insurance company has been directed to pay the amount of compensation and then recover the same from the owner and driver. 6. Reliance has been placed by learned counsel for the appellant insurance company upon the judgment of the single Judge of Madurai Bench of Madras High Court in the matter of The Divisional Manager, The New India Assurance Co. Ltd. Vs. V. Chandran and M. Murugan, (2011) ACJ 981, wherein discussing the case-law laid down by Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 , it has been mentioned that the direction given to the concerned insurance company in Swaran Singh case (supra) cannot be considered as a precedent, as has been observed by the larger Bench of the Hon'ble Apex Court, in para 100 of the judgment, which is produced as under: (100) Although, as noticed hereinbefore, there are certain special leave petitions wherein the persons having (sic driving) the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent. 7. In the case of Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, (2008) 12 SCC 385 the Hon'ble Apex Court has exercised the jurisdiction conferred under Article 142 of the Constitution. Therefore, this court and the learned court below have no jurisdiction to issue a direction to the insurance company to pay and recover the amount of compensation from the owner/driver where it was a case of no licence. 8. In the matter of Oriental Insurance Co. Ltd. Vs. Therefore, this court and the learned court below have no jurisdiction to issue a direction to the insurance company to pay and recover the amount of compensation from the owner/driver where it was a case of no licence. 8. In the matter of Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, (2008) 12 SCC 385 in paras 18 and 19, the observations of the Hon'ble Apex Court are liable to be perused, which are reproduced as under: (18) In the light of the above settled proposition of law, appellant insurance company cannot be held liable to pay the amount of compensation to claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of the scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing a driving licence for driving HMV and he was driving a totally different class of vehicle, which act of his is in violation of section 10(2) of the Motor Vehicles Act. (19) In the result, the appeal is allowed to the limited extent and it is directed that the appellant insurance company though 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 by it along with interest from the owner of the vehicle, viz., respondent No. 8, 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. This direction is given in the light of the judgments of this court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, (2004) 2 SCC 1 and Deddappa and Others Vs. The Branch Manager, National Insurance Co. Ltd., (2008) 2 SCC 595 9. In the case of National Insurance Co. Ltd. Vs. Parvathneni and Another, (2009) 8 SCC 785 the above question regarding 'pay and recover' has been referred to the larger Bench of the Hon'ble Supreme Court for decision. 10. The Branch Manager, National Insurance Co. Ltd., (2008) 2 SCC 595 9. In the case of National Insurance Co. Ltd. Vs. Parvathneni and Another, (2009) 8 SCC 785 the above question regarding 'pay and recover' has been referred to the larger Bench of the Hon'ble Supreme Court for decision. 10. In view of the above discussion, we are of the opinion that the direction contained in the impugned award to the appellant insurance company to pay the amount of compensation to the claimants and recover it later on from the owner and driver of the vehicle is not sustainable in the eyes of law and deserves to be set aside. 11. Regarding cross-objection, we have to mention that in the claim petition, the monthly income of the deceased is mentioned as Rs. 3,000/-, therefore, the annual income would come to Rs. 36,000/-. The Tribunal after deduction of 1/3rd, assessed the loss of dependency as Rs. 2,000/- per month. Since the age of the deceased was 22-23 years, in view of Second Schedule to the Motor Vehicles Act, 1988, as the claim application was filed u/s 163-A of the Act, the multiplier of 17 would be applicable and the Claims Tribunal has rightly applied the multiplier of 17, but has wrongly awarded the amount under other heads, i.e., Rs. 10,000/- for funeral expenses, Rs. 10,000/- for loss to estate and Rs. 10,000/- towards loss of consortium, as the same are contrary to the provisions of Second Schedule, on much higher side. Since the appeal has not been filed by the owner, therefore, we are not interfering as regards the quantum fixed in the impugned award. However, in case the owner of the vehicle files an appeal, the same would be considered. At this stage, there is no force in this cross-objection. Therefore, the same is dismissed. 12. In the result, the appeal is allowed. The impugned award so far as it relates to the direction to the appellant insurance company to pay and recover the amount of compensation from the owner and driver of the vehicle in question, is hereby set aside. The appellant insurance company is exonerated from its liability to pay and recover the amount of compensation from the owner and driver of the vehicle. It will be open for the claimants to recover the amount of compensation from the owner and driver of the vehicle. 13. The appellant insurance company is exonerated from its liability to pay and recover the amount of compensation from the owner and driver of the vehicle. It will be open for the claimants to recover the amount of compensation from the owner and driver of the vehicle. 13. The amount deposited by the appellant insurance company shall be allowed to be withdrawn by it. However, if the same has been disbursed to the claimants, then it will be open for the appellant insurance company to recover the same from the owner and driver of the vehicle. No order as to costs.