Karnataka High Court

C P Parvathi Ponnappa vs Ravi S/O Lakshmanegowda on 5 April, 2022

Bench: Hanchate Sanjeevkumar

                            1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF APRIL, 2022

                         BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

 MISCELLANEOUS FIRST APPEAL NO.10791/2011(MV)

BETWEEN:

C.P. PARVATHI PONNAPPA
W/O LATE C.P. PONAPPA
AGED 83 YEARS
NO.381, 1ST STAGE, 1ST CROSS
VIJAYANAGARA
MYSORE
                                           ...APPELLANT

(BY SRI. SHRIPAD .V. SHASTRI, ADVOCATE)

AND:

1.      RAVI S/O LAKSHMANEGOWDA
        AGED 23 YEARS
        R/OF JAYAPURA, JAYAPURA HOBLI
        MYSORE TALUK

2.      M. MURTHY S/O LATE MADAIAH
        AGED 50 YEARS
        R/OF NO.645, 1ST MAIN, II CROSS
        DATTAGALLI, MYSORE

3.      UNITED INDIA INSURANCE CO. LTD.
        D.O.NO.I, NO.1134, PRINCE OF WALES ROAD
        NEAR BALLAL CIRCLE, CHAMARAJAPURAM
        MYSORE
                                        ...RESPONDENTS

(BY SRI. CHRISTOPHER NOEL, ADVOCATE FOR R1,
    SRI. B. ROOPESH, ADVOCATE FOR R2,
                             2

  SRI. P.B. RAJU, ADVOCATE FOR R3)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
04.09.2010     PASSED     IN  MVC    NO.15/2009(OLD
MVC.NO.1/2009) ON THE FILE OF THE VI ADDITIONAL
DISTRICT JUDGE AND MACT, MYSORE, AWARDING A
COMPENSATION OF RS.1,30,240/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION AND
ETC.,

     THIS M.F.A. HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR "PRONOUNCEMENT OF
JUDGMENT" THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                     JUDGMENT

The appeal is preferred under section-173(1) of

Motor Vehicles Act 1988 (for brevity 'MV Act'), being

aggrieved by the judgment and award dated 04.09.2010,

in MVC No.15/2009, passed by VIth Additional District

Judge and MACT Mysore, stated to be erstwhile owner of

the car bearing registration No.KA-09-M-7725. It is the

contention of the appellant that she has sold the said car

in question to the second respondent herein and the

second respondent has caused the accident, who is also

the owner of the car, but the Tribunal has saddled the

burden of payment of compensation on the appellant.

Therefore, the appellant has preferred the present appeal.

Brief facts:

2. On 31.10.2007 at about 9.00 a.m., near

Andolana Circle Kuvempunagar, Mysore when first

respondent - claimant was proceeding on his Hero puch

Motor cycle bearing registration No.KA-09-R-8681 along

with a pillion rider in order to go to Vivekananda Nagar on

Udayaravi Road, Kuvempu Nagar, a car bearing

registration No.KA-09-M-7725 came in a rash and

negligent manner from Dattagalli Power Station side and

dashed against the Hero Puch of the first respondent -

claimant and as a result of the same the he and the pillion

rider fell down and sustained injuries. Thereafter, the first

respondent - claimant was immediately taken to BGS

Appollo Hospital, Mysore and admitted as in patient there

from 30.10.2007 to 12.11.2007.

3. The learned counsel for the appellant

submitted that the appellant is not the owner of the

vehicle / car bearing registration No. No.KA-09-M-7725, at

the time of the accident, as she has sold the said car to

the second respondent during the first week of

January'2008. Further, submitted that the appellant has

handed over all the documents of the car to the second

respondent. But the second respondent has failed to get

transferred his name in the certificate of registration.

4. It is submitted by the learned counsel for the

appellant that the second respondent had committed fraud

on the appellant along with one Advocate, M.S. Latha and

misrepresented the appellant. Even though the appellant

had not executed any vakalat or any document to appear

on behalf of her before the Tribunal and also not

authorized to file written statement on behalf of the

appellant.

5. Further, submitted that the Tribunal had not

executed any vakalat to the Advocate M.S.Latha to appear

on behalf of her before the Tribunal and also the written

statement purported to be filed on behalf of the appellant

is a forged one by making forged signature of the

appellant. But in fact, the appellant has not instructed the

Advocate M.S. Latha to file the written statement.

Therefore, in this regard the appellant had filed a private

complaint before the learned Magistrate at Mysore which is

numbered as PCR No.2066/2011 and got registered the

complainant and directed the Police to submit a report

under Section-156 of Cr.P.C. Further, the appellant had

lodged a complaint before the Karnataka State Bar

Council, Bangalore, as against the Advocate M.S. Latha for

having committed fraud in collusion with the second

respondent.

6. Therefore, the learned counsel for the

appellant submitted that the appellant being 83 years old

lady believing the second respondent had delivered the

possession of the car along with all the documents and

records pertaining to the car in question, but the second

respondent had failed to get transferred the certificate of

registration in his name. Therefore, he has committed

fraud. Therefore, by contending that the appellant is not

the owner and the second respondent is owner of the car.

Therefore, submitted that in order to prove the forgery and

fraud having committed in the proceedings before the

Tribunal and regarding ownership of the car in question,

the matter is needed to be remanded to the Tribunal.

Therefore, prays for remanding the case to the Tribunal for

fresh disposal in accordance with law.

7. On the other hand, the learned counsel for the

second respondent contended that the appellant was the

owner of the car at the time of the accident, but not the

second respondent. Further, submitted that even if the

appellant has contended she has sold the car to second

respondent, but there is no iota of evidence produced to

support the said contention.

8. Further submitted that, admittedly, the car

stands in the name of the appellant and till date in the

certificate of registration, the name of the appellant is

continued. Therefore, the appellant was the owner at the

time of the accident and till today, the said ownership is

continued. Therefore, the Tribunal has rightly considered

this aspect and correctly held that the appellant was the

owner of the car at the time of the accident. He has

contended that where the name of the appellant is

continued in the certificate of registration, that alone is to

be taken into consideration, while deciding who is the

owner of the vehicle as per Section-2(30) of the MV Act

1988. Therefore, prays to dismiss the appeal.

9. The learned counsel for the third respondent -

insurance company submitted that it is an inter se dispute

between the appellant and the second respondent

regarding ownership of the car. Furthermore, the second

respondent was driving the car, who was not holding a

valid driving license to drive the car. Therefore, the third

respondent-insurance company is not liable to pay the

compensation. Therefore, the Tribunal has rightly

considered this aspect and exonerated the third

respondent - insurance company and saddled the burden

on the appellant for payment of compensation.

10. The learned counsel appearing for the first

respondent submitted that the first respondent who is the

claimant, is in helplessness situation between the dispute

of the appellant and the second respondent. Even after ten

years the first respondent - claimant is not able to get the

compensation. Further submitted that, whose name is

reflected in the certificate of registration is the owner of

the vehicle. Therefore, by holding so, he prays to dismiss

the appeal.

11. The Tribunal had held that the appellant is the

owner of the vehicle as on the date of the accident and the

second respondent has driven the car, but was not holding

Driving License. Therefore, saddling the burden on the

appellant to pay the compensation, thus exonerated the

third respondent - insurance company.

12. Even the learned counsel for the appellant is

contending that the appellant was not the owner of the car

and she had sold the car to the second respondent in the

month of January'2008 but the appellant has not produced

any documentary evidence to prove that the appellant has

sold the car in favour of the second respondent.

13. The learned counsel for the appellant admitted

that till today the name of the appellant is continued in the

certificate of registration (RC Book). But it is only the

contention of the appellant that she has sold the car in

favour of the second respondent. But for this, the appellant

has not placed any evidence proving transfer of vehicle in

favour of the second respondent. It is the contention of the

learned counsel for the appellant that the second

respondent in collusion with one Advocate M.S. Latha had

falsely shown that she was appearing on behalf of the

appellant before the Tribunal. But in fact the appellant had

not executed any vakalat to appear before the Tribunal.

Further, submitted that whatever written statement

purported to have been filed by the appellant before the

Tribunal is not the one filed by the appellant and the said

written statement is fraud one by making forged signature

of the appellant. Therefore, contended that the said

Advocate M.S. Latha had misrepresented the appellant

before the Tribunal just in order to avoid compensation to

be payable by the second respondent.

14. The appellant was aged 83 years and therefore

taking such undue advantage of the advance age of the

appellant, both have played fraud and in this regard the

appellant was constrained to file private complaint before

the learned Magistrate, Mysuru against the second

respondent and also the appellant had lodged the

complaint before the Karnataka State Bar Council against

M.S. Latha for misconduct. Therefore, it is contention of

the appellant that the matter be remanded to the Tribunal

to deal on this aspect and also to find out who is the owner

of the car at the time of the accident.

15. Upon considering the submissions of the

learned counsel for the appellant regarding the forgery

committed and the fraud played, the appellant had filed

private complaint No.2066/2011, before the learned

Magistrate, Mysuru. But the learned counsel for the

appellant is not able to show what was the result of the

said private complaint whether the second respondent was

convicted or acquitted or any other result in the case. But

the learned counsel for the second respondent submitted

that the said private complaint was dismissed. Therefore, it

proves that whatever forgery and fraud allegation are

there, that was different aspect to be dealt with in between

the appellant and the second respondent and it was dealt

before the Court of Magistrate and that has nothing to do

with the first respondent - claimant and in this regard the

appellant had also filed the private complaint before the

learned Magistrate, Mysore and as per the submission of

the counsel for the second respondent the said complaint

was dismissed. Therefore, the aspect of fraud and forgery

has dealt with in a different forum.

16. At the same time, the appellant has also

contended that she has filed a complaint before the

Karnataka State Bar Council against the Advocate M.S.

Latha. The learned counsel for the appellant has also failed

to bring notice of the Court as to what has happened to

the said complaint filed before the Karnataka State Bar

Council against M.S.Latha. Therefore, whatever fraud and

forgery alleged by the appellant were already dealt with in

different forums and that cannot be attached during the

proceedings before the Tribunal and claim petition cannot

be converted as a criminal case. The paramount need to

be considered by the Tribunal is in awarding compensation

to the claimant who had suffered injuries or death in the

Road Traffic Accident.

17. Therefore, the learned counsel appearing for

the appellant is contending to prove the ownership of the

vehicle, fraud and forgery committed the case has to be

remanded to the Tribunal. Upon considering the above

submissions, the prayer made by the learned counsel for

appellant cannot be considered for the reason that as

discussed above, regarding fraud played and forgery

committed as alleged, the same is already dealt with

before the competent forums, i.e., the Magistrate Court at

Mysuru and another by the Karnataka State Bar Council

Bengaluru. The Tribunal is not expected to deal with that

aspect on fraud or forgery as alleged in the present case.

If the appellant is contending that she has sold the car in

favour of the second respondent, then the appellant has to

produce some evidence to prove that she has sold the car

in favour of the second respondent. But the appellant has

not produced any evidence in this regard.

18. The learned counsel appearing for the

appellant submitted that the name of the appellant is

continued in the Certificate of Registration (RC). When this

being the fact, it proves that the appellant was the owner

of the car. Section - 50 of Motor Vehicles Act, 1988 states

the procedure for transfer of ownership, which stipulates

as follows:

"50. Transfer of ownership.

(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,--

(a) the transferor shall,--

(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee;

and

(ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer,

forward to the registering authority referred to in sub-clause (i)--

(A) the no objection certificate obtained under section 48; or

(B) in a case where no such certificate has been obtained,--

(I) the receipt obtained under sub-section (2) of section 48; or

(II) the postal acknowledgement received by the transferred if he has sent an application in this behalf by registered post acknowledgement due to the registering authority referred to in section 48, together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;

(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from

the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.

(2) Where--

(a) the person in whose name a motor vehicle stands registered dies, or

(b) a motor vehicle has been purchased or acquired at a public auction conducted by, or on behalf of, Government,

the person succeeding to the possession of the vehicle or, as the case may be, who has purchased or acquired the motor vehicle, shall make an application for the purpose of transferring the ownership of the vehicle in his name, to the registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, in such manner, accompanied with such fee, and within such period as may be prescribed by the Central Government.

(3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in clause (a) or clause (b) of sub-section (1), as the case may be, or if the person who is required to make an

application under sub-section (2) hereafter in this section referred to as the other person fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him under section 177 such amount not exceeding one hundred rupees as may be prescribed under sub- section (5):

Provided that action under section 177 shall be taken against the transferor or the transferee or the other person, as the case may be, where he fails to pay the said amount.

(4) Where a person has paid the amount under sub-section (3), no action shall be taken against him under section 177.

(5) For the purposes of sub-section (3), a State Government may prescribe different amounts having regard to the period of delay on the part of the transferor or the transferee in reporting the fact of transfer of ownership of the motor vehicle or of the other person in making the application under sub-section (2).

(6) On receipt of a report under sub-section (1), or an application under sub-section (2), the

registering authority may cause the transfer of ownership to be entered in the certificate of registration.

(7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority.

19. Further, Section-2(30) of the MV Act 1988

stipulated the definition of Owner of the Vehicle:

"Section-2(30) :

"owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire- purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;

20. Therefore, as per the definition enshrined

Section - 2(30) of the Act, stated supra, 'owner' means a

person in whose name the motor vehicle stands registered.

In the instant case, it is not disputed that the name of the

appellant still continues as registered owner in the

certificate of registration. Therefore, it proves the appellant

is the owner of the car. Furthermore, the appellant has not

taken any action for getting transfer of vehicle in favour of

the second respondent, as contemplated under Section-50

of the MV Act.

21. In this regard, I place reliance on the judgment

of the Hon'ble Apex Court in the case of Naveen Kumar

vs. Vijay Kumar and Others, reported in (2018) 3

SCC 1, wherein the Hon'ble Apex Court has dealt with in

the case under the similar set of facts and circumstances

regarding ownership of the vehicle and their Lordships

were pleased to observe at Para-13 of the judgment as

follows:

"13. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is

treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act.

Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the 'owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi." (emphasis is supplied).

22. Therefore, the principle of law laid down by the

Hon'ble Apex Court is that as per Section - 2(30) of the

M.V. Act, the owner is in whose name the certificate of

registration stands. The learned counsel for the appellant

has not disputed the name of the appellant still stands in

the certificate of registration. Therefore, the appellant is

proven to be owner of the vehicle as on the date of the

accident. It is not expected by the claimant to prove who is

the owner of the vehicle. The claimant is the victim of the

accident of the road traffic accident, cannot be left in a

state of uncertainty to decide who is the owner of the

vehicle.

23. Therefore, as per Section-2(30) of the MV Act,

whose name is found in the certificate of registration is

said to be owner of the vehicle. Therefore, in this regard

remanding the case that the Tribunal regarding ownership

is not permissible and moreover it would cause injustice to

respondent No.1-claimant in causing further delay to get

the compensation.

24. Even this Court had suggested to the learned

counsel for the appellant to produce Driving License of the

second respondent or extract of the RC particulars. But the

learned counsel for the appellant had not taken any

interest to the suggestion made by this Court. It is only

the submission of the learned counsel for the appellant

that he wants to lead oral evidence before the Tribunal in

proving the ownership of the vehicle. Therefore, this Court

has given one more chance to the appellant to produce

Driving License of the second respondent or to produce

documents showing the second respondent is owner of the

vehicle, but failed to receive the said suggestion made by

the Court.

25. Therefore, this Court is of the opinion that

there would not be any purpose served in remanding the

case to the Tribunal. The accident was caused in the year

2007 and till this date, respondent No.1-claimant is not

able to get any compensation either from the owner of the

vehicle or from the insurance company. The third

respondent - insurance company is exonerated from

payment of compensation on the ground that the second

respondent had driven the Car in question without having

Driving License. Therefore, the third respondent was

exonerated.

26. For the aforesaid discussion, it is proved that

the appellant is found to be the owner of the Car in

question as per Section - 2(30) of the MV Act as per the

principle of law laid down by the Hon'ble Apex Court in the

case of Naveen Kumar vs. Vijay Kumar's case stated

supra. Therefore, the Tribunal findings are perfectly

justifiable and correct one and which needs no interference

by this Court. The third respondent-insurance company is

exonerated from payment of compensation on the ground

that the second respondent was driving the Car without

holding a Driving License at the time of accident.

27. Therefore, in this regard in order to provide

substantial justice to respondent No.1-claimant it is

needed to order pay and recovery based on the principle

enunciated under Section-149 of the MV Act, also as per

the principle of law laid down by the Hon'ble Apex Court in

the case of PAPPU AND OTHERS VS. VINOD KUMAR

LAMBA AND ANOTHER reported in (2018) 3 SCC 208,

at para Nos.17, 19 and 20, which reads as follows:

"17. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph:

"107, the Court then observed thus:

"We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has

committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefore against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage."

18. xxx

19. In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL- 5955 was comprehensively insured by the

respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.

20. Accordingly, the appeal is allowed to the extent that the compensation amount awarded by the Tribunal and confirmed by the High Court shall be paid and satisfied by the insurer (respondent No.2) in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law."

28. Also in this regard, I place reliance on the Full

Bench judgment of this Court in the case of New India

Assurance Company Limited vs. Yellavva And

Another Reported in 2020 ACJ 2560, wherein it was held

at para - 57 as follows:

In the result, the questions referred to in this appeal are answered as under:

i) Having regard to Section 149(1) read with Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established

or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-à-vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.

ii) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act.

iii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the Insurance Company has to satisfy the award, as it is the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify

the insured would arise and insurer is entitled to recover from the insured.

iv) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-à-vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-à- vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.

v) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law.

vi) Article 142 of the Constitution of India being a power granted under the Constitution only to the

Supreme Court can be exercised in appropriate cases only by the Apex Court. Exercise of power under Article 142 by the Hon'ble Supreme Court in a particular case cannot be a precedent for other Courts and Tribunals to exercise such a power unless the same is indicated to be a precedent by the Apex Court.

In the instant case, the appellant - Insurance Company was directed to discharge its liability, subject to the result of this reference. The vehicle involved in the instant case is a goods vehicle and the injured claimant was travelling in a goods carriage. The Tribunal awarded compensation of Rs.1,000/- with interest at 6% p.a. from the date of petition till deposit and to recover the same from the insured - respondent No.2 herein. If the appellant - insurer has deposited the amount, it is entitled to recover the said amount from the first respondent - insured, as this is a case which falls under Section 149(2)(a) of the Act as the insured claimant was permitted to travel as a passenger in a goods vehicle namely, tempo.

In the circumstances, the appeal is liable to be dismissed and is dismissed.

Parties to bear their respective costs."

29. Therefore, in the present case respondent No.1

is a third party, who is the victim of the accident.

Therefore, as per Section-149 of the MV Act, if insurer

succeeds in defence of non-holding of Driving License, then

the insurance company shall pay the compensation at the

first instance to the respondent No.1-claimant and then

recover it from the owner of the vehicle. Therefore, an

order of pay and recover is made for the reasons the

above stated.

30. However, considering the submissions made by