National Insurance Company ... vs Smt. Veena Wd/O Sanjay Dongre & 6 ...
2017 Latest Caselaw 4765 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR

                              FIRST APPEAL NO. 2 OF 2006

       National Insurance Company Ltd.
       Wardhaman Nagar Branch through the 
       Divisional Manager, Nagpur 
       Divisional Office-II, Paul Complex, 
       Ajni Square, Nagpur.            ....... APPELLANT
                                       (Ori. Respondent no.1)
                ...V E R S U S...
1]     Smt. Veena wd/o Sanjay Dongre
       Aged abut 39 years, Occ.: Service

2]     Ku. Shikha d/o Sanjay Dongre
       Aged about 12 years, Occ.: Student

3]     Ashish s/o Sanjay Dongre
       Aged about 11 years, Occ.: Student

4]     Sachin s/o Sanjay Dongre
       Aged about 10 years, Occ.: Student

5]     Avinash s/o Sanjay Dongre
       Aged about 8 years, Occ.: Student
       Respondents 2 to 5 minors 
       Through their mother and natural 
       guardian the respondent no.1, 
       all residents of 480, Sugat Nagar, 
       Nagpur (Original petitioners 1 to 5)

6]     Narayan s/o Jaggu Bansod
       (original respondent no.2).
       (Since deceased through his LRs)

       6-a] Smt. Sulkabai wd/o Narayan Bansod
              Aged about 59 years, Occ.: Household
              R/o Teka Bedar, Tah. Deori,
              District-Gondia.




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          6-b] Shri. Vinod s/o Narayan Bansod
                 Aged about 42 years, Occ.: Service
                 At Treasury Office, Amgaon, 
                 R/o Trimurti, Tah. Deori,
                 District-Gondia.

          6-c] Sou Panshelabai w/o Prakash Meshram
                 Aged about 40 years, Occ.: Household
                 R/o Shedepar, Tah. Deori,
                 District-Gondia 
                 (the daughter of the deceased).

          6-d] Ravindra Narayan Bansod
                 Aged about 36 years, Occ.: Business
                 R/o Trimurti, Tah. Deori,
                 District-Gondia.

          6-e] Munna s/o Narayan Bansod
                 Aged about 34 years, Occ.: Business
                 R/o Trimurti, Tah. Deori,
                 District-Gondia.

7]       Firoz Khan s/o Samman Khan Pathan,
         Aged about 22 years, Occ.:Driver
         R/o Belgaon, P.S.Chichgarh, 
         District-Gondia
         (original Respondent No.3). .... RESPONDENTS
-------------------------------------------------------------------------------------------
         Shri. D. N. Kukday, Advocate for Appellant.
         Shri. S. V. Sirpurkar, Advocate for Respondent no.1.  
-------------------------------------------------------------------------------------------
          CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

          Date of reserving the Judgment                                     : 07.07.2017
          Date of pronouncing of Judgment                                    : 20.07.2017

JUDGMENT

By its Judgment and Order dated 22.8.2005 passed in

Claim Petition No. 230 of 2001, the Motor Accident Claims

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Tribunal, Nagpur held the appellant Insurance Company jointly and

severally liable to pay compensation of Rs.11,03,000/- to the

respondents with future interest @ 8% per annum from the date of

petition till realization, with further directions that the appellant was

to satisfy the Award first and then to recover the amount from the

owner, in execution proceeding.

2] Being aggrieved by this Order and Judgment, the

appellant-Insurance Company has preferred this appeal.

3] Brief facts of the appeal can be stated as follows:-

On 7.11.2000 deceased Sanjay was travelling in a Jeep

No. MH-35/C-0206 at about 6.00 a.m. on National High No.6. When

the jeep came near Birsi Phata, it gave dash to stationary truck bearing

No. MP-23/DA-8977. Resultantly, deceased Sanjay, who was one of

the occupants in the jeep, suffered fatal injuries and died on the spot.

The offence was registered against respondent no.3, the jeep driver by

Sakoli police station under Section 279, 304-A of the Indian Penal

Code. The jeep was insured with the present appellant and it was

owned by respondent no.6 Narayan.

4] Respondent no.1 Veena is the widow of deceased Sanjay,

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whereas respondent nos. 2 to 5 are their minor children. As per the

case of this respondent nos. 1 to 5, at the time of accident, deceased

Sanjay was 39 years old. He was working as Pharmacist at Rural

Hospital, Chichgad, District-Gondia and was drawing salary of Rs.

8,500/- per month. These respondents were totally dependent upon

him. On account of his untimely death, they lost their only source of

income. Therefore, they filed Claim Petition before the Tribunal

against appellant and respondent nos. 6 and 7, claiming compensation

of Rs.23,00,000/-.

5] The appellant resisted the said petition vide written

statement at Exh.44, admitting the insurance of the jeep. However,

raising a specific plea that there was breach of terms and conditions of

the insurance policy. It was submitted that said jeep was insured as

private car but at the time of accident it was being used for carrying

fare-paying passengers and in that situation as the contractual liability

of the Insurance Company being only towards bona fide occupants of

the vehicle, that too to the extent of Rs.57,000/- per occupant, the

liability of the deceased, who was travelling in the jeep, as fare paying

passenger and, therefore, not a third party, is not covered under the

insurance policy and hence, the appellant cannot be fastened with the

liability of paying compensation to the respondents. An attempt was

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also made to contend that as the owner and insurer of the truck no.

MP-23-DA-8977 were not joined in the Claim Petition, the claim

petition was bad for non-joinder of necessary parties. It was submitted

that the truck was standing without any indicator or signal and hence,

truck driver was also equally responsible for the cause of accident. It

was also submitted that the amount claimed in the petition towards

compensation was excessive and exorbitant.

6] Respondent no.6, the owner and respondent no.7, the

driver of the jeep, though appeared in the petition, did not file their

written statement. At the time of hearing also, both of them remained

absent.

7] On these respective pleadings of the parties, the Tribunal

framed necessary issues for its consideration at Exh.45. In support of

their case, respondent no.1 examined herself and led the evidence of

witness Mahadeo Kanojiya, to prove the pay bill of the deceased. As

against it, on behalf of appellant, P.S.I. Motiram Gohare was examined

to prove that at the time of accident deceased was travelling in the

jeep as fare paying passenger. Appellant also led the evidence of its

Senior Branch Manager Sudhakar Shende to prove the terms and

conditions in the policy Exh.101. As the owner of the jeep has not

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contested the petition, appellant was permitted to contest the claim on

all grounds under Section 170 of the Motor Vehicles Act.

8] On appreciation of the evidence led before it, the learned

Tribunal was pleased to hold that the cause of accident was the rash

and negligent driving of the jeep and hence, the owner of the jeep is

liable to compensate respondent nos. 1 to 5. As regards the liability of

the appellant Insurance Company, Tribunal held that there was

definitely breach of the terms and conditions of Insurance Policy.

However, appellant has in the first instance, to pay the amount of

compensation of respondents and thereafter to recover the same from

the owner of the jeep in execution proceedings. The Tribunal

accordingly awarded the compensation of Rs.11,03,000/- to the

respondents with interest @ 8% per annum from the date of petition

till realization.

9] This judgment and order of the Tribunal is subject matter

of the present appeal. It may be stated that neither the owner of the

jeep nor the original claimants have challenged this judgment and

hence, the only issue which can arise and which is raised for

consideration is about the liability of insurance company to satisfy the

award, when admittedly the Tribunal itself has held the breach of

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terms and condition of policy to be proved on record.

10] As a matter of fact, this issue is also on both the factual

and legal aspects no more res integra. However, before adverting to

this legal issue, it would be necessary to state certain proved facts on

record; the first and foremost is that deceased was travelling in the

jeep which gave dash to the stationary truck. The offence was

registered against the jeep driver and the Tribunal has also, after

discussing the evidence on record, came to conclusion that the cause

of accident was rash and negligent driving of the jeep. In this respect,

the Tribunal has considered the fact that the driver of the jeep even

though was made party to the petition, did not step into witness box.

The Tribunal has also considered the evidence of witness no.2

Prashant Bansod who was travelling in the said jeep, hence an eye-

witness to the accident to prove that the jeep was in fast speed and the

driver of the jeep was unable to control the jeep, even after noticing

the stationary truck and as a result the accident occurred. As can be

seen from the judgment of the Tribunal, the aspect of rashness or

negligence on the part of jeep driver was not at all seriously

challenged or disputed. In the instant appeal also, the owner and the

driver of the jeep i.e. respondent nos. 6 and 7 have not appeared and

contested the said finding of the Tribunal. Moreover, that finding of

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the Tribunal being based on the evidence on record like FIR, spot

panchnama and also the evidence of eye-witness Prashant, no

interference is called for in the said finding.

11] The next material factual aspect which is also proved on

record is that, at the time of accident, the deceased and other

occupants were travelling therein as fare paying passengers. There is

evidence on record to that effect of A.S.I. Motiram Gohare, who was

examined by the appellant and who has stated that, in all 12 persons,

including the deceased had hired the jeep in order to go to Pachmadhi.

It is admitted by respondent no.1 Veena that she had no acquaintance

with the owner of the jeep. Though she has denied that deceased was

travelling in the said jeep as fare paying passenger, the inference is

inevitable that the jeep was taken on hire, in absence of any pleading

that deceased was travelling as gratuitous passenger. There is also no

case or defence put by the owner or the driver of the vehicle that

deceased was travelling as gratuitous passenger. As a matter of fact,

Prashant (PW-2) has admitted in his statement recorded by police in

the course of investigation that the jeep was hired for going to

Pachmadhi. Therefore, this finding of the learned Tribunal that

deceased was travelling in the jeep as fare paying passenger is also

based on proper appreciation of evidence on record and it is not

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challenged by either respondent no.6 then owner or respondent no.7,

the driver of the jeep. They have not preferred any appeal against this

judgment of the trial Court, therefore, it has become final.

12] The evidence on record also goes to show that the

insurance policy of the jeep was covering the risk of nine passengers to

the extent of Rs.57,000/- per passenger, by accepting premium of

Rs.256.50. There is evidence on record of the Manager of the

Insurance Company Shri. Sudhakar Shende. Thus, the Insurance policy

of the jeep was covering the third party risk and as the occupants of

the jeep cannot be considered as third party, their risk was not covered

under the policy. The copy of the insurance policy is produced on

record at Exh.101 and it clearly goes to show that it was the

comprehensive policy. Section-II in respect of the liability of third

party as contained in policy at Exh.101, is sufficient to show that

liability of the occupants in the car was covered, provided that such

occupants are not carried for hire or reward.

13] Hence, liability to indemnify the insurer is only in respect

of the claim of third party, which includes occupants of the car, who

are not travelling for hire or reward. In other words, only the liability

of gratuitous passenger is covered under the terms and conditions of

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the policy. This legal position is also well settled in view of the

judgment of the Hon'ble Apex Curt in case of Amritlal Sood Vs.

Kaushlya Devi, 1988 ACJ 531, wherein it was held that the word

"any person" used in section-II of the policy, only include the occupant

of the car who was gratuitously travelling in the said vehicle. In the

instant case, as deceased is proved to be travelling in the said vehicle

on hire, his liability is not covered under the insurance policy.

14] If the liability of the deceased, who was a passenger for

hire, travelling in the jeep is not covered by the insurance policy, the

question raised for consideration, by learned counsel for appellant in

the backdrop of these facts is whether the Insurance Company can be

even directed to satisfy the award at first instance and thereafter to

recover the same from the owner in execution proceeding? The

submission of learned counsel for appellant is twofold; first that, such

direction to the Insurance Company to satisfy the award and thereafter

to recover the same for the owner of the offending vehicle is given by

the Hon'ble Apex Court in its extraordinary jurisdiction under Article

136 or 142 of the Constitution, therefore, neither the Tribunal nor the

High Court can give such direction. Secondly, it is submitted that if

such direction is to be given, then first, the owner should be directed

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to furnish solvent surety of the entire amount of the award, then only

the appellant insurance company can be fastened with the liability to

satisfy the Award.

15] According to learned counsel for respondents-claimants,

however, such directions can be given by the Tribunal and this Court

also. Moreover, it is submitted that, in this case as the entire amount

of compensation is already deposited in the Court by the appellant-

Insurance Company and the owner of the offending vehicle is also no

more alive, it would not be proper to deprive the claimants for further

period from the amount of compensation.

16] To appreciate these two submissions made by learned

counsel for both the parties, it would be necessary to revisit the

authoritative pronouncements of the Apex Court on this point.

17] According to learned counsel for the appellant, once the

breach of the terms and conditions of the policy is proved on record

the insurance Company cannot be liable even to satisfy the award at

first instance and thereafter to recover the same from the owner of the

vehicle. It is urged that whatever directions, given by the Hon'ble Apex

Court on this aspect of "pay and recover" are given, only in exercise of

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its jurisdiction under Article 142 of the Constitution of India read with

Article 136 thereof. Those directions were given for doing complete

justice to the parties. Such extra ordinary jurisdiction is however,

neither available with the Tribunal nor with this Court as the Apex

Court alone can exercise such extraordinary jurisdiction.

18] In this respect reliance is placed on the judgment of

Hon'ble Apex Court in the case of "Oriental Insurance Company

Limited Vs. Brij Mohan and others 2007 AIR SCW 3734", wherein

the Apex Court itself, has clearly observed that, it was in exercise of its

extraordinary jurisdiction and in order to do complete justice to the

parties, it has given directions to the Insurance Company to satisfy the

Award first and thereafter to recover it from the Insurer.

19] It is submitted by learned counsel for appellant that in the

decision of Ram Prakash Sing and Ors. Vs. State of Bihar and Ors.,

2006 AIR SCW 5312 also, it was held that this was an order passed

under Article 142 of the Constitution of India on the particular facts of

that case and the direction given on the subject, in exercise of

jurisdiction under Article 142, is not a binding precedent.

20] Learned counsel for appellant has in this respect then

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placed reliance on the judgment of a single bench of this Court in the

case of United India Insurance Co.Ltd. Vs. Anubai Gopichand

Thakare, 2008(1) Mh.L.J. 73, to submit that in this case this Court

has refused to give such direction to the Insurance Company to

indemnify the owner who is not entitled otherwise to claim from the

insurer, on the count that such direction falls within the domain of

extraordinary jurisdiction of the Apex Court and hence the same

cannot be treated as binding precedent. It was further held that even

Section 168 of the Motor Vehicles Act does not empower the Tribunal

to issue direction to the insurer to pay amount of compensation, once

the finding is reached that insurer is not liable to pay such amount on

account of fundamental breach of the terms of the Insurance policy.

21] Learned counsel for the appellant has then placed reliance

on the judgment of Division Bench of this Court in the case of Traders

Pvt.Ltd., Ahmedabad and another Vs. Sunanda wd/o Krishna

Machivale and others, [2009(1) Mh.L.J. 898 wherein also this Court

refused to issue such direction to the Insurance Company to satisfy the

award first and thereafter to recover the same from the owner. It was

held that, such direction cannot be issued in all cases to insurance

Company, if it is not bound in law to pay compensation, to pay it and

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recover it from the owner of the offending vehicle. It was further held

that the direction given by the Apex Court in the case of National

Insurance Company Vs. Baljitkaur and others 2004 (2) Mh.L.J.

(SC) 372, was in exercise of its jurisdiction under Article 142 of the

Constitution of India read with Article 136 thereof for doing complete

justice to the parties. Such powers do not vest in the High Court,

therefore, it was not possible to pass similar orders.

22] It is submitted by learned counsel for appellant that

different view taken by learned single Judge of Nagpur Bench in the

case of National Insurance Co. Ltd. Vs. Prakash Sakharam

Dudhankar and ors., 2006(1) Mh.L.J. 601 was not accepted by the

Division Bench of our High Court in this case.

23] Thus, according to learned counsel for appellant, this

court should restrain itself from confirming the order passed by the

Tribunal, of directing the Insurance Company to satisfy the award first

and then to recover the amount from the owner, as such order can be

passed only by the Hon'ble Supreme Court in its extraordinary

jurisdiction. Hence, according to learned counsel for appellant, the

impugned order of the Tribunal to that effect is required to be quashed

and set aside.

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24] Per contra, learned counsel for respondents-claimants has

relied upon the judgment of the single bench of this Court in the case

of New Assurance Company Limited Vs. Sindhu wd/o Hiralal

Tawade and others in First Appeal No. 656 of 2004 decided on

29.3.2012, wherein another single Judge of the Nagpur Bench of this

Court has taken note of the consistent view taken by the Hon'ble

Supreme Court in the case of Kusum Lata Vs Satbir & others [AIR

2011 SC 1234] and held that such direction needs to be given to the

Insurance Company to pay compensation to the claimants and then to

recover the same from the owner of the vehicle. The submission made

therein that, only the Apex Court can give such direction in its

extraordinary jurisdiction was rejected.

25] Learned counsel for respondents, has then also placed

reliance on the judgment of the Apex Court in the case of Kusum Lata

& others Vs. Satbir and others, 2011 DGLS(SC) 206, wherein

paragraph-13 of its judgment, the Hon'ble Apex Court held as follows:

"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 and others report in (2004) 3 SCC 297".

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(Emphasis supplied)

26] It is submitted by learned counsel for respondents that, in

this judgment the order passed by the Tribunal directing the Insurance

Company to pay and then recover it from the owner of the vehicle,

was held to be rightly given and confirmed. Therefore, according to

learned counsel for respondents, there is no substance in the

contention of learned counsel for appellant that only the Apex Court

can issue such direction.

27] Learned counsel for respondents has then placed reliance

on the judgment of the Apex Court in the case of Manager, National

Insurance Company Limited Vs. Saju P. Paul and another, (2013) 2

Supreme Court Cases 41 to submit that in this judgment after taking

review of all its earlier judgments on this question, as to whether such

direction could be issued to the Insurance Company to first satisfy the

awarded amount in favour of claimant and then recover the same

from the owner of the vehicle, Apex Court placed reliance on its

judgment in National Insurance Company Vs. Baljitkaur (supra),

wherein it was held in paragraph-21 as follows:

"21....The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law

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was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court 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. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms thereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery whereof, from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding." (Emphasis supplied).

28] It was observed by the Hon'ble Apex Court that the above

position has been followed even in subsequent decision like National

Insurance Co. Ltd. Vs. Challa Upendra Rao (2004) 8 SCC 517,

wherein it was observed in paragraph-13 as follows"

"13.... The residual question is what would be the appropriate direction. 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 some cases 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.

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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. 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. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make repayment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured."

29] In this case, the Apex Court also took into consideration

its decisions in National Insurance Co.Ltd. Vs. Kaushalaya Devi

(2008) 8 SCC 246 and in the case of National Insurance Company

Vs. Roshan Lal SLP (C) No. 5699 of 2006 order dated 19.1.2007,

wherein, in the light of argument raised before a two-Judge Bench

that the direction ought not to be issued to the Insurance Company to

discharge the liability under the award first and then recover the same

from the owner, the matter has been referred to the larger Bench for

consideration. It was held that merely because the matter was

referred to the larger Bench, does not mean that the course which was

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followed in Baljitkaur and Challa Upendra Rao should not be

followed, more so in a particular fact situation of the said case in

which the accident has occurred in the year 1993, when claimant was

28 years of old and now he was about 48 years of age, who has been

permanently disabled and not been able to get compensation due to

the stay order. It was held that he can not be compelled to struggle

further for recovery of the amount. Hence, having regard to the

peculiar facts of the case, he was allowed to withdraw the amount

deposited by the Insurance Company with interest accrued thereon

and it was held that Insurance Company, may recover the said amount

by following the procedure as laid down in the case of Challa

Upendra Rao.

30] In the latest judgment of the Apex Court in the case of

Manura Khatun and others Vs. Rajesh Kumar Singh and others,

(2017) 4 Supreme Court Cases 796 relied upon by learned counsel

for respondents also, being faced with the similar situation wherein

the Insurance Company was exonerated and the Award was passed

only against the owner of the offending vehicle i.e. the person insured,

it was held that appellants-claimants were entitled for an order against

the insurer to pay the awarded sum to claimants and then to recover

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said amount from the insured in the same proceedings, as per the law

laid down in para-26 of the judgment made in Saju P. Paul. It was

held that since the High erred in not passing such order, it was

necessary to modify the said order. Accordingly, after taking note of its

earlier orders which are referred in the judgment of Saju P. Paul, it

was held that the Insurance Company was liable to satisfy the award

first and accordingly directed to pay the awarded sum to the claimants

and thereafter to recover the same from the owner of offending

vehicle in execution proceeding.

31] Thus, the consistent and well crystalised legal position

which can be gathered from all the above referred judgments of the

Hon'ble Apex Court and this court is that even in the case where the

breach of terms and insurance Company is proved on record, a

direction can be issued and needs to be issued to the Insurance

Company to satisfy the award first and then to recover the amount

from the owner of the offending vehicle. As can be seen from this

latest judgment of the Hon'ble Apex Court in the case of Manura

Khatun (supra), as the High Court has not followed this course, it was

held that High Court has erred in not passing such order and the order

of the High Court was modified giving such direction to the Insurance

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Company. Therefore, it can no more be accepted that, neither the

Tribunal nor this Court can issue such order on the principle of "pay

and recover" against the Insurance Company, in the light of the

categorical and unequivocal view taken by the Apex Court that even if

the award is passed against insurer i.e. owner of the vehicle only, it is

the duty of the insurer to satisfy the award first and then to recover

from the owner. Therefore, in this case also even if it is accepted that

the insurer of the offending vehicle is exonerated and award is passed

again the owner of the vehicle only in that case also, the appellant the

Insurance Company has to satisfy the award first and then to recover it

from the owner.

32] Next submission of learned counsel for the appellant is

that if this Court is confirming the order passed by the Tribunal

directing the appellant Insurance Company to satisfy the award first

and then to recover it from the owner, then this Court should follow

the mode laid down by the Apex Court in the case of Pramod Kumar

Agrawal and Ors Vs. Mushtari Begum and Ors, III (2005) ACC 357

(SC) and also in the case of National Insurance Company Limited

Vs. Challa Bharathamma and others, (supra). In the case of

Mushtari Begum reliance was placed by the Hon'ble Apex Court on its

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judgment in National Insurance Company Vs. Baljit Kaur (supra)

and it was held in para-11 as follows:

"11... While upholding the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra), that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the owner the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court 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. Before release of the amount to the claimants, owner of the vehicle i.e. appellant No.1 shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle i.e. appellant No.1 shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured (the appellant No.1)". (Emphasis supplied).

33] In the judgment of Challa Bharathamma, (supra) the

mode for recovery of amount from the owner is laid down in para-13

as follows:

"13.... The residual question is what would be the appropriate direction. 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 some cases the

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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 concerned Executing Court 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. 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. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make repayment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured." (Emphasis supplied).

34] As stated above, this mode of recovery of the amount by

insurance Company from the owner, which is laid down in Baljit

Kaur's case and in the case of Challa Bharathamma is approved and

confirmed by the Apex court in the case of Saju P. Paul by giving a

specific direction to the effect that "recovery of amount by the

Insurance Company from the owner shall be made by following the

procedure as laid down by the Court in Challa Upendra Rao's case".

The said mode was further approved in the case of Manura Khatun

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by observing in para-21 "that Insurance Company can recover the paid

award sum from the owner of the vehicle in execution proceeding

arising in in this very case as per the law laid down in para-26 of

Saju P. Paul's case". In the present case also therefore, the similar

orders are required to be passed as Tribunal has also held the

appellant liable to satisfy the award and then to recover the amount

from the owner of the vehicle, but has not laid down the conditions

and the mode, which are laid down by the Apex Court in above said

decision of Challa Bharathamma. Those directions are now required

to be incorporated in this judgment and to this limited extent

interference is warranted in the impugned judgment and award of the

Tribunal.

35] The submission of learned counsel for respondent-

claimants is that, in this case, both in the petition before the Tribunal

and also in this appeal, respondent no.6, the owner of the offending

vehicle has not appeared and not contested the claim. Now,

respondent no.6, the owner is also no more alive and his legal heirs

are brought on record. In such situation, it is submitted that it will be

difficult for the claimants to recover the amount of compensation from

the owner or to comply with the directions of the owner executing

furnishing security for the entire amount. It is submitted that even one

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does not know whether the offending vehicle is still owned by

respondent no.6. Hence, it is urged that directing the claimants to

execution proceeding for recovery of the amount which is long over-

due as the accident in the case has taken place in the year 2000 i.e.

about 17 years back, would be parady of justice. It is urged that

instead thereof, as the amount is already deposited by the appellant-

Insurance Company in this court, the respondents- claimants may be

permitted to withdraw the same. The remedy of recovering that

amount from the legal heirs of respondent no.6, the owner of the

offending vehicle is still available to the appellant which appellant can

exercise independently by filing execution proceeding against them.

According to learned counsel for the respondents-claimants, this

would also serve the substantive cause of justice.

36] In my considered opinion, however, though this

submission appears to be "just", so as to sub-serve the cause of justice,

having regard to the law laid down by the Hon'ble Apex Court in all

the above said authorities like Challa Bharathamma, Mushtari

Begum and Ors., this Court cannot deviate from the mode prescribed

by the Hon'ble Apex Court, in order to enable the claimants to get

amount of compensation. After all, the appellant-Insurance Company,

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which is required to be exonerated from paying the compensation

amount in view of the breach of the terms and conditions of the

insurance policy is now being directed to pay the said amount and,

therefore, the interests of the Insurance Company are also required to

be protected before the claimants are permitted to withdraw the said

amount. The Court has to, in such cases take the balanced view.

Therefore, the directions given in the said authorities need to be issued

in this case also, so as to safeguard the rights of appellant- Insurance

Company and also that of the respondents-claimants.

37] As amount of compensation awarded by the Tribunal is

based on the evidence on record, proving that total net salary of the

deceased was Rs.8500/- per month and at the time of accident he was

39 years of age, the Tribunal has rightly applied multiplier 16 and

awarded the total compensation of Rs.11,03,000/-, even considering

his future prospects also. Therefore, on that score no interference is

warranted in the judgment of Tribunal.

38] As a result, the appeal stands dismissed. The direction

given by the Tribunal to appellant to satisfy the award and recover the

same from the owner in Execution Proceeding is confirmed with

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further direction as follows:

Before the release of the amount of compensation

deposited by the appellant in this Court to the respondent claimant,

the owner of the offending vehicle-respondent shall furnish security

for the entire amount which the insured will pay to the claimant.

If necessity arises, the executing Court shall take

assistance of the concerned Regional Transport Authority for

attachment of the vehicle.

The Executing Court shall pass appropriate order in

accordance with the law as to the manner in which the owner of the

vehicle shall make payment of the insurer.

In case there is any default, it shall be open to the

executing Court to direct realisation of the amount by disposal of the

securities to be furnished or from any other property or properties of

the owner of the vehicle.

In this case, considering the quantum involved, it is left to

the discretion of the insurer to decide whether it would take steps for

recovery of the amount from the insured.

With these directions, the appeal stands dismissed with no

order as to costs.

JUDGE RGIngole