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2015 DIGILAW 492 (MP)

Karansingh v. Omprakash

2015-04-24

S.R.WAGHMARE

body2015
ORDER : S.R. WAGHMARE, J. 1. Present appeal has been filed by the petitioner Karansingh under Section 173/1 of the Motor Vehicles Act 1988 being aggrieved by the award dated 01/10/2013 passed by 9th M.A.C.T, Indore in claim case No. 06/11. 2. Briefly stated the facts of the case are that the applicant Karansingh was travelling on his scooter bearing registration No. M.P.09/J.P./9889 on 11/09/2010 from his house towards Rajkumar Bridge. When nearing the Malwa Mill Chowki a loading rickshaw bearing No. M.P.09/L.N./1256 being rashly and negligently driven by respondent No. 2 Arvind Arya came from behind and dashed his scooter. As a result of which he fell down and received injuries on both the hands, legs and waist and other parts of the body. He was admitted in M.Y. Hospital, Indore for treatment and a report was filed on Police Station Pardesipura, Indore. As a result of the injuries resulting in the accident, he suffered a permanent disability and therefore, filed the claim under Section 166 of the Motor Vehicle Act, stating that he was working as a cycle repairer as well as seller of cycle parts and earning Rs. 7,000/- per month and claimed a damage for Rs. 1.00 lakh jointly and severally from all the three respondents. 3. Counsel for the non-applicant No. 3/HDFC Ergo General Insurance Company Limited resisted the claim stating that neither the accident had taken place by loading rickshaw bearing No. M.P.09/L.N./1256 or that the applicant was earning Rs. 7000/- as claimed. He also denied the injuries and also raised the said plea that the driver of the vehicle did not have a valid driving licence and loading rickshaw was being driven without the fitness certificate. He also submitted that the driver had a non transport vehicle licence and therefore, he could not drive a transport vehicle and there was violation of conditions of insurance policy. The intimation was also not given to the insurance company regarding the accident and the accident has taken place due to negligence of the applicant himself. The owner and driver of the impugned vehicle, however, remained ex-parte. 4. The Trial Court on considering the evidence passed the award that Rs. 29,000/- be awarded to the applicant/claimants by respondent No. 1 and 2 owner and driver but completely exonerated the insurance company. The owner and driver of the impugned vehicle, however, remained ex-parte. 4. The Trial Court on considering the evidence passed the award that Rs. 29,000/- be awarded to the applicant/claimants by respondent No. 1 and 2 owner and driver but completely exonerated the insurance company. It held that the driving licence of the respondent No. 1 driver was that of light motor vehicle and could not be used for a vehicle which was used for transportation and commercial vehicle and since the driver did not have a valid licence, there was violation of conditions of the insurance policy and the violations were found to be proved and the insurance company was exonerated. 5. Being aggrieved the applicant has filed the present appeal. Learned Counsel for the appellant has argued only a single point before this Court that the case cited by the appellant in the Trial Court were completely ignored by the Trial Court holding that it cannot make a direction to the insurance company to pay first and recover the amount from the driver and owner of the disputed vehicle. Counsel submitted that the appellant would be satisfied if only such a direction is given to the respondent No. 3/Insurance Company to pay and recover the money from the owner and driver. 6. Counsel placed reliance on Kulwant Singh Vs. Oriental Insurance Company Ltd., (2014) ACJ 2873 and S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 7 SCC 62 to state that under similar circumstances the Apex Court has considered liability of the company when disputed since the driver had only a licence to drive light motor vehicle but he was driving a goods vehicle. The Tribunal mulcted liability on the insurance company. Counsel submitted that in both the cases, the Courts had held that if there was violation of the conditions of the insurance policy regarding the driving license even then the company may proceed against the insurer for recovery of the amount but it had to pay the award at the first instance. Counsel submitted that in the present case also he would be satisfied if such a direction is made. 7. On considering the above submissions, I find that the Judge of the Lower Court, however, has drawn objection that the Apex Court may direct the payment of the award by the insurance company. Counsel submitted that in the present case also he would be satisfied if such a direction is made. 7. On considering the above submissions, I find that the Judge of the Lower Court, however, has drawn objection that the Apex Court may direct the payment of the award by the insurance company. However, the High Court or Lower Court cannot do so. And on pursuing the case of National Insurance Company Limited vs Parvathneni and Anr. [SLP (C) No. 22444 of 2009], the Apex Court categorically held that when the non-liability of the Insurance Company was proved and there was no valid insurance coverage on the date of the accident then the insurer cannot be compelled to pay compensation and recover the same from the owner. The Apex Court, in several matters, has considered this fact. Even in the matter of The Divisional Manager, The New India Assurance Company Limited Vs. Vinayaga Moorthi and Others, (2010) ACJ 1605 : (2008) 7 MLJ 588 the Apex Court has categorically held that whether the claims Tribunal followed any directions issued by the Supreme Court:- "Therefore, the decision of the Tribunal to follow a direction issued by the Apex Court in exercise of its extraordinary jurisdiction under Article 142 of the Constitution of India, to the present claim petitions is not in accordance with law and therefore, I have no hesitation to hold that there is an excess of jurisdiction. In the light of the decisions of the Supreme Court on the issue, the finding of the Tribunal fastening the liability on the appellant insurance company to pay compensation to all the victims and to recover the same from the owner is liable to be set aside and accordingly, set aside. Insured, respondent No. 3 is liable to compensate each of the victims. It is for the respondents-claimants to take up appropriate proceedings before the Tribunal to recover the compensation from the insured. The amount deposited by the appellant insurance company in respect of each of the claim petitions shall be refunded to the insurance company within two weeks from the date of receipt of this order. The common judgment and decree of the Tribunal in M.C.O.P Nos. 277 of 2003, etc., dated 14.08.2007 are set aside. The civil miscellaneous appeals are allowed. The amount deposited by the appellant insurance company in respect of each of the claim petitions shall be refunded to the insurance company within two weeks from the date of receipt of this order. The common judgment and decree of the Tribunal in M.C.O.P Nos. 277 of 2003, etc., dated 14.08.2007 are set aside. The civil miscellaneous appeals are allowed. No Costs" The Apex Court also specifically held that:- "Article 136 read with Article 142 of the Constitution of India, confers an extraordinary jurisdiction on the highest Court in the country to issue any direction and exercise their power to do complete justice and Tribunals do not have any such power, similar to that conferred under Article 142 and any attempt to follow the exercise would lead to incongruous and disastrous results." 8. I find that the prayer of the appellant cannot be allowed since no other point was argued before this Court. The appeal is, therefore, dismissed as being without merit. C.C. as per rules.