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2014 DIGILAW 128 (BOM)

National Insurance Co. Ltd. v. Zanak

2014-01-21

S.B.SHUKRE

body2014
JUDGMENT Heard finally. None for the respondents though duly served. 2. This appeal is preferred against the judgment and Award passed on 23.11.2012 in Claim Petition No. 365 of 2009 by Member, Motor Accident Claims Tribunal No. 1, Nagpur. 3. Respondents 1 to 4 were the petitioners who had filed claim petition under Section 166 of the Motor Vehicles Act, 1988 against respondent no. 5 and the present appellant. It was their case that their youngest brother Ramesh Jaypal Morasiya died in a vehicular accident which occurred on National High Way No. 6 on 28.3.2009. According to them, at the relevant time, deceased Ramesh was proceedings on a bicycle from the direction of village Kharbi to a Petrol Pump on the National High Way and at that time one truck bearing registration No. AP-29/U-1597 came in a high speed from behind and dashed against left side of bicycle of Ramesh. Ramesh sustained serious injuries and died of them. Offences were registered for rash and negligent driving against the driver of the truck. The truck was insured with the appellant and owned by respondent no. 5. The petitioners (respondents 1 to 4) submitted that the accident occurred due to rash and negligent driving of the said truck and since they were dependent upon the income of the deceased at the time of death, the appellant as well as the owner of the truck, i.e. respondent no.5, were liable to pay compensation to them. 4. While the owner, respondent no.5, did not file any written statement letting the matter to proceed exparte against him, the appellant resisted the claim. The appellant contended that there was a breach of conditions of the insurance policy as the truck was being driven by the driver without any licence. It was also submitted that respondents 1 to 4 were not dependent on the income of the deceased and, therefore, there was no loss of dependency for them. On these grounds, it was urged that the petition was liable to be dismissed. 5. After considering the evidence led by the parties on the issues framed, the learned Member of the Tribunal found that respondents 1 to 4 were entitled to claim compensation and that the owner of the truck, i.e. respondent no.5 was liable to pay the same. Accordingly, the quantum of compensation was fixed by the learned Member to be at Rs. After considering the evidence led by the parties on the issues framed, the learned Member of the Tribunal found that respondents 1 to 4 were entitled to claim compensation and that the owner of the truck, i.e. respondent no.5 was liable to pay the same. Accordingly, the quantum of compensation was fixed by the learned Member to be at Rs. 2,75,000/- inclusive of no fault liability, and interest on this amount at the rate of 7.5% per annum also came to be fixed. The learned Member, however, held that in the facts and circumstances of the case, it was just and proper to direct the Insurance Company first to pay the compensation amount to respondent no.1 and then to recover the same from respondent no.5. It is this order which is appealed against in this appeal. 6. At the time of admission of this appeal, this Court on 17.4.2013 had issued notices to all the respondents for final disposal of the matter. The notices have been duly served upon the respondents, but nobody is appearing on behalf of respondents 1 to 5. Since the appeal has already been fixed for final disposal and the respondents have also been duly served about final hearing of the matter, this Court has heard the appellant finally in the matter. 7. Upon hearing the appellant and also after going through memo of appeal, the only point that arises for my determination is: “Whether the Motor Accident Claims Tribunal was justified in directing the appellant to first pay the compensation and then recover it from respondent no.5? 8. It is seen from the reasons stated in the impugned judgment and Award that respondents 1 to 4 have not been held to be dependents on the income of deceased Ramesh. It is particularly noted by the learned Member of the Tribunal that these respondents were brothers and sister of the deceased who were earning their own income and residing separately. It has also been found by the learned Member that respondent no. 4 was the married sister residing with her family at Nagpur and also doing the labour work. These facts found by the learned Member of the Tribunal on the basis of the evidence available on record clearly show that the respondents 1 to 4 were not dependent upon the income of the deceased. 4 was the married sister residing with her family at Nagpur and also doing the labour work. These facts found by the learned Member of the Tribunal on the basis of the evidence available on record clearly show that the respondents 1 to 4 were not dependent upon the income of the deceased. The learned Member, therefore, held that the Insurance Company would not be liable to pay any amount. At the same time, the learned Member found that in such a case the purpose of justice would be served if the appellant was directed to pay compensation first and recover the same from the owner of the vehicle. 9. If the appellant has not been held to be responsible to pay any damages or compensation to respondents 1 to 4, especially when there has been a clear cut finding recorded in the impugned judgment and Award, that these respondents were not dependent upon the income of the deceased, I do not see any rationale in issuing a direction to the present appellant to pay compensation first and recover the same from respondents 1 to 4. In fact, the respondents 1 to 4 are admittedly the persons who are eking out their living through labour and earning income. No harm or prejudice is going to be caused to them, if compensation is not paid to them immediately by the owner. They are the persons who have the ability and capacity to execute the decree against the owner, if any such need arises. On the other hand, it can possibly be a difficult proposition for the appellant to recover the amount paid. In this case, the owner of the vehicle is from other State and in such a situation, there may not be easy sailing for the appellant to recover the amount from somebody, who is from the other State. Besides, no reason has been stated by the learned Member for issuance of such a direction, which ought to have been given. 10. The power to pay first and recover later has been held to be extraordinary in nature and, therefore, demands its exercise for reasons and under jurisdiction, which are exceptional in nature. Besides, no reason has been stated by the learned Member for issuance of such a direction, which ought to have been given. 10. The power to pay first and recover later has been held to be extraordinary in nature and, therefore, demands its exercise for reasons and under jurisdiction, which are exceptional in nature. A useful reference to have elaborate exposition of the principle governing this power may be made to decisions rendered in the cases of Traders Pvt. Ltd. v. Sunanda wd/o Krishna Machivale – 2009(1) Mh.L.J. 898 and United India Insurance Co. Ltd. v. Sindhubai w/o Kondiram Darwante – 2010(3) Mh.L.J. 886 . 11. In the circumstances, the direction so issued cannot be sustained in law and it deserves to be quashed and set aside. Accordingly, the appeal is allowed with costs and the impugned judgment and Award to the extent it directs the appellant to pay and then recover is hereby quashed and set aside. However, so far as fastening of liability upon respondent no.5, owner, to pay compensation to respondents no. 1 to 4 is concerned, the same stands confirmed. Appellant is permitted to withdraw the amount deposited in this Court after a period of two weeks from the date of this order.