United India Insurance Co.Ltd vs Gori Shanker & Others
2014 Latest Caselaw 1034 Del

$~4
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


%              Judgment delivered on: 25th February, 2014


+      FAO 724/2003



UNITED INDIA INSURANCE CO.LTD          ..... Appellant
                      Represented by: Mr. Pankaj Seth, Adv.

                     versus


GORI SHANKER & OTHERS                             ..... Respondents
                                 Represented by: Mr. G.S. Sharma, Adv. for
                                 R1.
                                 Mr. Navneet Goyal, Adv. for R2.


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

CM. NO. 10586/2007

1. Vide the instant application, the applicant / respondent No.2 has filed cross-objection to the instant appeal. Same has been admitted vide order dated 03.09.2009.

2. The Registry of this Court is directed to register the instant application as a separate MAC Appeal and re-notify on 02.05.2014.

3. In view of the above, the instant application stands disposed of.

+ FAO 724/2003

1. The instant appeal has been preferred against the impugned award dated 30.08.2003, whereby Ld. Tribunal has directed the appellant to pay the compensation amount in favour of the respondent / claimant with recovery rights against respondent nos. 2 & 3, i.e., the driver and owner of the offending vehicle.

2. This appeal has been filed on the ground that the finding of the Ld. Tribunal about the rights to recover the amount paid by the appellant / insurance company in satisfaction of the award of the Ld. Tribunal is vague and not executable and the appellant has to initiate fresh litigation against the driver and owner of the offending vehicle to recover the amount paid by it.

3. Ld. Counsel appearing on behalf of the appellant submits that since the law was not settled at that point of time on the issue that on giving the recovery rights, whether the insurance company could directly file the execution to recover the same or had to file civil suit to recover the amount from the owner and driver of the offending vehicle.

4. Ld. Counsel further submits, the law is settled on this issue and has relied upon a case of National Insurance Company Ltd. v. Baljit Kaur and Ors. 2004 2 SCC 1, wherein it is held as under:

"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

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 New India Assurance Co. v. Satpal Singh, (2000) 1 SCC 237. The said decision has been overruled only in New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223. 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 whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof 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."

5. In view of the settled law, the present appeal has become infructuous.

6. The appellant is at liberty to recover the amount from the owner and driver of the offending vehicle jointly and severally subject to outcome of the cross-appeal filed by the owner of the offending vehicle.

7. Accordingly, the appeal is dismissed as infructuous.

CM. Nos. 1472/2003 and 10587/2007 With the dismissal of the instant appeal itself, instant applications have become infructuous and disposed of as such.

SURESH KAIT, J FEBRUARY 25, 2014 Jg/sb