M/S. Oriental Insurance Company ... vs Katla Bharathamma 2 Ots
2023 Latest Caselaw 1148 Tel

            THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI


            MACMA.No.823 of 2008 And MACMA.No.1745 of 2013


COMMON JUDGMENT:


         These two appeals under Section 173 of the M.V. Act respectively by

the 2nd respondent/Insurance company and the claimants arise out of one

Award dated 11.10.2007 of the learned Chairman, Motor Accidents Claims

Tribunal-cum-IX Additional Chief Judge, (Judge, Fast Track Court), City Civil Court, Hyderabad, made in M.V.O.P.No.3146 of 2005.

2. In these appeals, the parties shall be referred to as claimants and the

2nd respondent/Insurance Company for convenience and clarity.

3. The facts leading to the filing of these two appeals may be stated, in

brief, as follows: - 'The husband of the 1st claimant died on account of the injuries sustained by him in a motor vehicle accident; and therefore, the claimants had preferred a claim petition before the Tribunal. After trial, the

Tribunal had awarded a compensation of Rs.1,62,500/- with interest and

costs and had fixed the liability on the 2nd respondent insurance company to

pay the said compensation. Since the Tribunal fastened the liability on the

2nd respondent-insurance company, the aggrieved 2nd respondent had

preferred the MACMA.No.823 of 2008. Not having been satisfied with the compensation awarded, the claimants had preferred MACMA.Mo.1745 of

2013.'

4. I have heard the submissions of the learned counsel for the claimants

and the learned counsel for the 2nd respondent-insurance company.

5. These appeals need not detain this Court for long as it is fairly conceded by the learned counsel for both the sides that the claim petition

was dismissed against the 1st respondent owner of the vehicle involved in

the accident for default and that despite the said fact the Tribunal had fastened the 2nd respondent-insurance company with liability. In this regard,

it is necessary to note that in the concluding lines of the paragraph 2 of the Award the Tribunal had observed thus: 'Respondent No.1, being the owner

of the vehicle, and R.2 being the insurer, are jointly and severally liable

to pay compensation.' However, in paragraph 8 of the Award, while dealing with the issue No.1, the Tribunal had observed as follows: 'Since

the OP is dismissed against R1, R2 alone is liable to pay compensation.

Accordingly, issue No.1 is answered.'

6. The law is well settled that the liability of the insurance company arises

only for the purpose of indemnifying the insured against the liability incurred by the insured to pay any compensation to the person involved in a motor vehicle accident or his/her legal representatives, in case of death of such

person. And, when the claim itself stands dismissed against the owner of the vehicle/insured, the insurance company, which has only an obligation to indemnify the insured, cannot be fastened with any liability. It is needless to

mention that the insurance company is only in a position of an indemnifier and therefore, unless the insured/the owner of the vehicle is held liable, the insurance company, being an indemnifier, cannot be made liable. Ignoring

this settled principle, the Tribunal had erroneously fastened the liability on the

2nd respondent insurance company having dismissed the claim against the

1st respondent/insured for default. The said course is not in accordance with

law. Therefore, the impugned Award of the Tribunal is unsustainable under facts and in law.

7. In the peculiar facts and circumstances of the case, the learned counsel for the claimants requests that the matter be remitted to the Tribunal for fresh

disposal in accordance with the procedure established by law as it is necessary for the claimants to seek restoration of the claim petition, which

was dismissed for default against the 1st respondent/owner of the vehicle and

then proceed further in the matter afresh. The said submission is not

opposed by the learned counsel for the 2nd respondent insurance company. In the peculiar facts and circumstances of the case, allowing the appeals and remitting the matter to the Tribunal for fresh disposal in accordance with the

procedure established by law sub serves the ends of justice.

8. In the result, both the appeals are allowed and the impugned Award is set aside and the MVOP.No.3146 of 2005 on the file of the learned Chairman, Motor Accidents Claims Tribunal-cum-IX Additional Chief Judge (Judge, Fast

Track Court), City Civil Court, Hyderabad is remitted to the said Court for fresh disposal on merits and in accordance with the procedure established by law. It is needless to mention that the Tribunal shall give an opportunity to

the claimants to have the claim petition restored against the 1st respondent and then proceed with the matter afresh. There shall be no order as to costs.

Miscellaneous petitions pending, if any, in these appeals shall stand closed.

__________________________ JUSTICE M. SEETHARAMA MURTI 7th August, 2014 Vjl