1. This is an appeal filed by the original respondent No. 2, challenging the judgment and award dated 30-6-2004, passed by the learned Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 171/1997, directing the original respondent No. 1.appellant to pay compensation of Rs. 2,13,500/- to the original petitioners/respondents No. 1 to 5 herein and further directing the appellant/original respondent No. 2 to satisfy the award and recover the said amount from the respondent No. 1.
2. In all, four petitions were filed before the Motor Accident Claims Tribunal, Nagpur claiming compensation on account of deaths caused in the motor vehecular accident occurred on 20-7-1996 involving matador No. MP- 28.B-0340. While negotiating the road in between Warud to Dhanora the vehicle met with an accident because of reckless driving of its driver. Seven occupants in the matador sustained fatal injuries and succumbed to those Learned Tribunal held that because of rash and negligent driving of the matador the accident occurred. It was the defence of the respondent No. 2.appellant that vehicle MP- 28.B-0340 was a goods carrying vehicle and the deceased were gratuitous passengers and the vehicle was being used in breach of the terms of the insurance policy. This contention was accepted by, the learned Tribunal however, relying upon the decision of the Apex Court in the case of National Insurance Company v. Baljit Kaur, 2004 (2) Mh.L.J (S.C) 372 : 2004 ACJ 428 SC directed the respondent No. 2.appellant to satisfy the award and then recover the amount from the owner of the offending vehicle.
3. The only point canvassed before this Court is about jurisdiction of the Tribunal to issue direction to the respondent No. 2.appellant to satisfy award and then to recover the said amount from the original tort-feasor, i.e owner of the vehicle. According to Mr. Pophaly, learned counsel appearing for the appellant such directions issued by the Apex Court were in exercise of its extraordinary jurisdiction under Article 142 of the Constitution. In support of his contention he relied upon the decision in Oriental Insurance Company Limited v. Brij Mohan, 2007 (3) TAC 20. In this case, their Lordships while exonerating the insurance company held that:
“However, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realise the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.”
4. Mr. Pophaly further relied on an unreported judgment of Single Bench of this Court in First Appeal No. 74/2008 decided on 4-6-2008. In that case the Insurance Company was exonerated from satisfying the award, so also no directions were issued by the learned Tribunal against the Insurance Company to satisfy the award and then to recover the said amount form the owner of the vehicle. After relying upon the decision in case of Oriental Insurance Company v. Brij Mohan (supra) the learned Single Judge held that, the learned Tribunal, not inclining to issue directions to the Insurance Company to satisfy the award and then to recover amount under award from the original owner, was justified.
5. Mrs. Pathade, the learned counsel appearing for the respondents submitted that there are catena of decisions of the Supreme Court issuing directions to the Insurance Company to satisfy the award at the first instance and then to recover it from the owner/driver of the vehicle. According to her the liability of the Insurance Company to satisfy the award at the first instance and then to recover the amount from the principal tort-feasor, flows from the provisions of the Motor Vehicles Act. In support of her contention she relied upon the decision in case of National Insurance Company v. Baljit Kaur, reported in 2004 ACJ 438. It was a case of goods vehicle engaged in carrying passengers for hire or reward or gratuitously. While exonerating the Insurance Company directions were issued to satisfy the award in favour of the claimant and recover the amount from the owner in execution proceedings.
6. Similar issue cropped up before the learned Single Judge of this Court in case of United India Insurance Company v. Sindhubai Kondiram Darwante, reported in 2010 (3) Mh.L.J 886 : 2010 (4) Bom.C.R 325, after referring to various decisions of this Court and the Supreme Court including the decision in case of National Insurance Company v. Parvethneni, reported in (2009) 8 SCC 785, the learned Single Judge observed that:
“27. Therefore, as the legal position stands today, there is a power vesting in Tribunal and in this Court, depending upon the facts and circumstances of each case, to direct the insurer to pay compensation amount and thereafter to recover the same from the insured.”
7. By extensively referring to the decision in the case supra, the learned Single Judge of this Court, in case of United India Insurance Company Limited v. Smt. Manisha Mahesh Harmalkar, 2011 (4) T.A.C 591, held that insurance company can be directed to pay the amount of compensation and recover the same from the insured/driver.
8. The view taken by this Court in case of United India Insurance Company v. Sindhubai Kondiram Darwante, 2010 (3) Mh.L.J 886 : 2010 (4) Bom.C.R 325 (supra), about the legal position that stands today received approval from the decision in case of Kusum Lata v. Satbir, 2011 (3) Mh.L.J (S.C) 722 : (2011) 3 SCC 646 : AIR 2011 SC 1234. Their Lordships addressing the issue of competence of the Tribunal to issue directions to the insurance company to pay and then may recover the amount of compensation from the owner of the vehicle and by relying upon the decision in case of National Insurance Company v. Swaran Singh, (2004) 3 SCC 297 observed that:
“13. In respect of the dispute about licence, the Tribunal has held and, in our view, rightly, that the Insurance Company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh, reported in (2004) 3 SCC 297 : AIR 2004 SC 1531”
9. In case of New India Assurance Company v. Urja Gale alias Urja Bahadur, reported in 2012 (1) TAC 429, it was contended before the Court that, either the Tribunal or the High Court cannot direct the insurance company to satisfy the award, once it has not been held liable. Dealing with this controversy and relying upon the decision in case of Kusum Lata v. Satbir, 2011 (3) Mh.L.J (S.C) 722 : (2011) 3 SCC 646 : AIR 2011 SC 1234 (supra), the High Court held that:
“Now, the Apex Court in Kusum Lata v. Satbir, 2001)(3) Mh.L.J (S.C) 722 : (2011) 3 SCC 646 : AIR 2011 SC 1234, has clearly held that in case where there is violation of the driving licence, then the Insurance Company can be asked to satisfy the award with liberty to reserve to it to recover the amount from the owner of the vehicle. Following the ratio of the Apex Court, the Insurance Company is directed to satisfy the award but it shall be at liberty to recover the same from the owner. It is clarified that the Insurance Company will not have to file separate suit or proceedings to recover the amount and can recover the amount from the owner by filing execution proceedings.”
10. There is a consistency in the view that the directions to the insurance company to pay compensation awarded and thereafter recover the same from the owner of the vehicle were issued by the Apex Court on consideration of relevant provisions of the Motor Vehicles Act and not in exercise of powers under Article 142 of the Constitution of India. This is what has been observed by the Division Bench of the Allahabad High Court in recent decision in case of Oriental Insurance Company v. Chandra Devi, reported in 2012 ACJ 567. This follows that the view, taken by this Court in United India Insurance Company v. Sindhubai Kondiram Darwante (supra) that there is a power vesting in Tribunal and in this Court, depending upon the facts and circumstances of each case to direct the insurer to pay compensation amount and thereafter to recover the same from the insured, holds the field.
11. For the reasons aforestated, there is no merit in this appeal. The appeal is dismissed with costs.
Appeal dismissed.
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