Tahsil Ga-'aband, Dist. Raipur vs Appellant/

Judgment

2. 3 Appellant/ Insurer Resoondents Claimant Driver Qwner Present: (Appeal under Section 173 of the Motor Vehicles Act, 1988).

Shri Sourabh Sharma, counsel for the appc;!ant. Shri P.P. Sahu, counsel forthe respondent No.3. None for respondents No. 1 and 2. ORDER (Passed on 2nd Januar^', ^013) -<'T'"ssa /y.,:- - .-^.^ ^ ^ ^fpw-r'.- ,.-"T<;.-\ ^¥^^1^':-J"..;. ^f •:^ "SitBB,.

1. This appeal has been filed by the appelant under Section 173 of the Motor Vehicles Act, 1988 (for short, "the Act") against the award dated 18-7-2008 passed by Additional Motor Accident Claims Tribunal, (for short, the Tribunal) Dhamtari (CG), in Claim Case No. 171/2006 whereby after exonerating the non-applicant No-3/appellant herein, the appellant has been directed to first pay the amount of compensation to the claimant/respondent No.1 herein and then to recover jointly and severalty from non-applicants/respondents No.1 and 2.

2. The facts of the case, in brief, are that on 1-5-2006 claimant was going as labour in the tractor bearing registration No. CG 04-D-9483 and Trolley No. CG 04-D-9484 driven by its driver Rohit Sahu, owned by respondent No.2 and was insured with appellant. Due to rash and negligent driving of driver of the offending vehicle, the accident took place, as a result of which claimant/respondent sustained multiple injuries including fracture, resulting into permanent disability.

3. The claimanVrespondent No.1 filed an application under Section 166 of theMotor Vehicles Act, 1988 (henceforth 'the Act, 1988') compensation of Rs.9,48,000/- against the respondents before the Tribunal. The Tribunal has partly allowed the claim petition and awarded Rs.1,55.100/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till its actual payment in favour of claimant and against respondents No. 2 and 3 with a direction to non-applicant No.3 to first pay the said amount of compensation to claimant and then to recover from non-applicants No. 1 and 2/respondents No. 2 and 3.

4. I have heard learned counsel for the parties, perused the impugned award as also the evidence available on record. W-h. 1 "^-^^^' ..s"' WSs.s^^''' c^

5. Leamed counsel for the appellant has contended that the claims Tribunal has committed manifest error of law in directing the appellant to pay the amount of compensation to the claimant and then to recover it from the respondents No. 2 and 3/non-applicants F'). 1 and 2 of the offending vehicle which is against the law laid down Ly Hon'ble Supreme Court in the case of National Insurance Co. Ltd.d vs. Parvathneni and another, reported ion 2009(8) SCC 785 in which the Hon'ble Apex Court has doubted the correctness of such di'ection and the matter has been referred to larger Bench.

6. On the contrary, learned counsel for res po; ,dent No.3 has supported the impugned award so far as it relates to direcUng the appellant to first pay the amount of compensation and then to recover it from respondents No. 2 and 3/non-applicants No. 1 and 2 (driver and owner of the offending vehicle), therefore, the claims Tribunal is fully justified in giving such direction of pay and recover to the appellant which calls for no interference by this court.

7. From perusal of the record of the court below and the impugned award, it is found that the claimanVrespondent No.1 sustained injuries on 1-5- 2006 on account of rash and negligent driving of driver of offending vehicle which was owned by respondent No.3, herein and was insured with appellant at the time of accident..

8. It is not in dispute that in respect of accident which occurred on 1-5- 2006 involving the offending vehicle, a criminal case has been registered against the respondent/driver Rohit under Seclions 279, 337, 338 of the IPC and under Sections 3/181 of the M.V. Act. Learhed lower court has given the finding in para 21 of the award that driver of the offending "^ B^ :>^. •y f "^i.-..y ^' vehicle Rohit was not having a valid and effective driving license at the time of accident, therefore, there was a brea&h of policy condition.

9. So far as legality and propriety of the direction given to the appellant to first pay the amount of compensation to the respondent No.l/claimant and then lo recover the same from respondents No. 2 and 2 (driver and owner ofthe offending vehicle respectively) is concerned, at the time of accident the offending vehicle was insured with the appellant, but since the appellant not liable to pay the amount of compensation, therefore, it could not have been directed to first pay the amount of compensation to the respondent No.l/ctaimant and then to recover it from respondents No. 2 and 3 jointly and severally which is the law laid down in the case of National Insurance Co. Ltd., v. Parvathneni and another (supra) in which the correctness of such direction has been doubted and the matter has been referred to larger Bench. In view of this, the Claims Tribunal has certainly committed manifest error law in directing the appellants to pay the amount of compensation to the respondent No.1 and to recover the same from respondents No. 2 and 3 which is liable to be and is hereby set aside.

10. In the result, the appeal is allowed. The direction given to the appellant-lnsurance company first pay amount of compensation to respondent No.l/claimant and then to recoverthe same from respondents No. 2 and 3 is set aside. However, the respondent No.1 claimant shall be entitled to recover the amount of ^ft.:. K_.^" fu^ compensation from respondents No.2 and 3 (driver and owner of the offending vehicle ) jointly and severally. If any amount has been deposited by the appellant-lnsurance Company, which has not been disbursed to the respondent No.l/claimant, then the same shall be refunded to the appellant-lnsurance Company. In case, the deposited amount or any part thereof has been disbursed to the respondent No.l/claimant, then the same shall be recovered from respondents No. 2 and 3 (driver and owner of the offending vehicle) by the appellant Insurance Company.

11. No order as to costs. Sd'- R.N. Chacdrakar Judge