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2023 DIGILAW 351 (MP)

Somvati v. Bhagwant Singh

2023-03-14

SUNITA YADAV

body2023
JUDGMENT 1. Present miscellaneous appeal is filed assailing the award dated 31.3.2017 passed by Motor Accident Claims Tribunal, Gwalior, District Gwalior in Claim Case No.260/2014, by which compensation to the tune of Rs.8,51,000/- has been awarded by the Claims Tribunal in favour of the appellants/claimants. 2. The relevant facts in brief to decide the present appeal are that the appellants/claimants filed the present claim petition with the averments that at the time of accident the deceased Narendra Jatav was traveling in a auto along with one Meera Bai and Muskan having Registration No.MP30/R/0872. On the spot of accident, respondent No.1-Bhagwant Singh, who was the driver of the vehicle, due to rash and negligent driving, turned the vehicle turtle due to which deceased received serious injuries and during treatment at J.A. Hospital he died. According to the appellants/claimants, the deceased was aged about 34 years and was working as a mason and was earning Rs.15,000/- per month. 3. The limited question before this Court is that whether the directions of learned Claims Tribunal to the effect that before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants is appropriate? 4. Learned counsel for the appellants argued that the owner of the vehicle was remained absent before the learned tribunal and he was proceeded exparte. The owner of the vehicle did not file written statement. In this situation the condition of furnishing the security before release of the awarded amount is not appropriate. 5. On the other hand, learned counsel for the insurance company argued that in the light of case of National Insurance Co. Ltd. v. Challa Bharathamma and Ors. reported in (2004) 8 SCC 517 , above case law, the direction of learned tribunal for furnishing the security before release of the awarded amount is appropriate, therefore, the present appeal be dismissed. 6. Heard the learned counsel for the parties and perused the record. 7. It is well settled that in the cases where the insurer has been given the option and liberty to recover the amount from the insured, for the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. 6. Heard the learned counsel for the parties and perused the record. 7. It is well settled that in the cases where the insurer has been given the option and liberty to recover the amount from the insured, for the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. However, considering the beneficial object of the Act it would not be proper asking for the security from the owner of the vehicle before release of the awarded amount as in the present case the owner of the offending vehicle remained absent before the learned Claims Tribunal, therefore, this Court is of the considered view that the condition that claimants shall be entitled to get amount of compensation from the insurance company only upon furnishing of such security by the owner of the offending vehicle would be against the beneficial object of the Act specially in the light of The judgment of 3 Judges' Bench of the Supreme Court in National Insurance Co,Ltd v. Swaran Singh and others, (2004) 3 SCC 297 . 7. In the case of Smt. Bhuri and others v. Smt. Shobha Rani and others, 2007 (1) T.A.C. 20 (All.), wherein it was held (paragraph 5 of the said T.A.C.) that:- "5. From the aforesaid case law, as referred to by the learned Counsel for the parties, it would be evident that in spite of the fact that the insurer is not made liable to compensate the claimants under the policy under section 149 of the Motor Vehicles Act, still the liability of payment, under the law as developed by the apex Court in this context, has been assigned to the Insurance Company. At the same time, the Insurance Company has also been given liberty to recover the said amount from the insured within the provisions of the Motor Vehicles Act itself and without taking the burden of filing a suit for that purpose. This principle of law was initially propounded in Baljit Kaur's case (supra) ((1) T.A.C. 366(SC)) and it has been followed in the aforesaid cases referred to by the parties concerned. This principle of law was initially propounded in Baljit Kaur's case (supra) ((1) T.A.C. 366(SC)) and it has been followed in the aforesaid cases referred to by the parties concerned. But in the subsequent cases more especially in Nanjappan's case (supra) (Oriental Insurance Company Ltd. v. Sri Nanjappan and others, 2004(2) T.A.C.12 (SC)), it has also been observed that before releasing the amount under deposit before the Court the insured/owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the Insurance Company will pay to the claimants. After that notice the Court may direct the attachment of the offending vehicle as part of the security and could also pass appropriate orders in accordance with law. In case of default it shall be open to the Court to direct realisation of the amount from the insured/owner by disposal of security or from any other property or properties of the owner of the vehicle. Therefore, all these modes have been provided by the apex Court for the insurer to make recovery from the insured. But from all these directions as given by the apex Court, the purport is that the Court shall not undermine the interest of the claimants for whose welfare the Supreme Court has been developing this law through all these cases even by interpreting otherwise the liability of the insurer with section 149 of the Motor Vehicles Act. Thus, what is the crux of the matter in the present case is that the revisionists-claimants cannot be made to suffer even if the insured/owner of the vehicle does not furnish security or does not appear before the Court in pursuance to the notice issued to him. The burden of recovering the amount within the provisions of the Act itself has been placed upon the insurer in the aforesaid judgments of the apex Court. The claimants who have obtained the award in their favour have not been made to suffer through any observation made by the Supreme Court in these cases. The burden of recovering the amount within the provisions of the Act itself has been placed upon the insurer in the aforesaid judgments of the apex Court. The claimants who have obtained the award in their favour have not been made to suffer through any observation made by the Supreme Court in these cases. Thus, in the aforesaid view of the matter, what I feel is that it would be just and proper if the Court below is directed to first take resort to the issuance of notice to the insurd/owner of the vehicle and thereafter only the money under deposit before the Court should be released in favour of the claimants." 8. In National Insurance Company Limited v. Smt. Khursheeda Bano and others, 2009 (1) A.W.C. 355 , a Division Bench of Allhabad High Court laid down as follows (paragraph 4 of the said A.W.C.):- "4. Learned counsel has cited the judgment of the Supreme Court in National Insurance Company Ltd. v. Challa Bharathamma and others, (2004) 8 SCC 517 , to establish that the claim of the insurance company should be secured by the owner. We have no quarrel with such proposition. What we want to say is that unless and until an appropriate application in the selfsame proceeding is made by the insurance company for the purpose of recovery, the question of furnishing security by the owner cannot arise. Such situation is yet to ripe. At this stage, we are only concerned with the payment of compensation to the claimants which cannot be stalled and has got nothing to do with the dispute regarding liability between the owner and the insurance company. The sufferer is a third party. Moreover, in such judgment, the Division Bench of the Supreme Court has categorically held " considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability." In effect it is a stop-gap arrangement to satisfy the award as soon as it is passed. Moreover, in such judgment, the Division Bench of the Supreme Court has categorically held " considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability." In effect it is a stop-gap arrangement to satisfy the award as soon as it is passed. The judgment of 3 Judges' Bench of the Supreme Court in National Insurance Co,Ltd v. Swaran Singh and others, (2004) 3 SCC 297 , also speaks in para 110 that the Tribunal can direct that the insurer is liable to be reimbursement by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Therefore, the intention of the Legislature as well as the interpretation by the Supreme Court and different High Courts is well settled to the extent that under no circumstances payment of compensation to the claimants will be stalled. Even at the cost of the repetition we say, it has nothing to do with the dispute with regard to liability of owner or insurer, which can be considered in the separate application in the selfsame cause or in an execution application in connection thereto to be initiated by the insurance company." 9. The above view was again upheld by the High Court of Allahabad (DB) in the case of The New India Assurnace Co. Ltd. v. Smt. Anita And Others on 29 February, 2012. 10. This Court is also of the view that all these modes have been provided by the apex Court for the insurer to make recovery from the insured. However, from all these directions as given by the apex Court, the purpose is that the Court shall not undermine the interest of the claimants for whose welfare the Supreme Court has been developing this law through all these cases even by interpreting otherwise the liability of the insurer with section 149 of the Motor Vehicles Act. Thus, in the present case also the appellants/claimants cannot be made to suffer even if the insured/owner of the vehicle does not furnish security or does not appear before the Court in pursuance to the notice issued to him. 11. Thus, in the present case also the appellants/claimants cannot be made to suffer even if the insured/owner of the vehicle does not furnish security or does not appear before the Court in pursuance to the notice issued to him. 11. Consequently, this appeal is partly allowed and the condition that the claimants shall be entitled to get amount of compensation from the insurance company only upon furnishing of such security by the owner of the offending vehicle is hereby set aside. Rest of the award impugned passed by the Tribunal shall remain intact. 12. With the aforesaid, the appeal is disposed of.