CORfiM v. Koni, District Koni, District Bilaspur C.G

Judgment

3. indira Bai W/o Late Mohtab. aged about 48 years, R/o Viilage Dhuripara, Police Station Koni, District Koni, District Bilaspur C.G. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years (Driver-Non-appSicant No. 1) Gopai Singh Thakur, S/o Shambhu Singh Thakur, aged about 32 years, Both are resident of Village Pausara, Tahsi! and District Bilaspur C.G. (owner-Non-applicant No. 2) c ^ isc._ApDeal No. 722 pfZOQS A!lianz General Insurance Company, Through - Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Applicant no.3) Versus

3. S/o Suryavanshi, Phenku Sukhiram Suryavanshi, aged about 34 years, R/o Village Pasaura, Po!ice Station Koni, District Koni, District Bilaspur C.G. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years (Driver-Non-applicant No. 1$ Gopai Singh Thakur, S/o Shambhu Singh Thakur, aged about 32 years, Both are resident of Viliage Pausara, Tahsil and District Bilaspur (owner-Non-appiicant No. 2) iisc. Appeal No. 728 of 2006 Ailianz General Insurance Company, Through - The Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Appiicant no.3) Versus

3. Bhuwan S/o Haricharan, aged about 40 years, R/o Village Pasaura, Police Station Koni, District Koni, District Bilaspur C.G. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years Gopal Singh Thakur, S/o Shambhu Singh Thakur, aged about 32 years, Both are resident of Viilage Pausara, Tahsil and District Bilaspur C.G. (owner-Non-applicantNo. 2) Misc. Apoeai No. 723 of 2006 Bajaj Allianz General Snsurance Company Limited, Through - The Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur. (Non-Appiicant no.3) Versus

Smt. Uma Bai Nirmalkar, W/o Late Shankar @ Bauna Nirmaikar, aged about 24 years. Raiu Nirmaikar, S/o Late Shankar (3?. Bauna Nirmalkar, aged about 12 years. Vicky Nirmalkar S/o Late Shankar @ Bauna Nirmaikar, aged about 10years. Dhirendra Nirmalkar, S/o Late Shankar Bauna Nirmalkar, aged about 8 years. Vijay Nirmalkar, S/o 1-ate Shankar @ Bauna Nirmalkar, aged about 4 years The respondents No. 2 to 5 through mother, Mother Smt. Uma Bai, W/o Late Shankar

2. AppelSarit Respondents Harmati Nirmaikar W/o Jakala Smt. Nirmalkar, aged about 65 years, A!l are resident of village- Pausara Tahsil & Dist. Bilaspur. Sanjay Chauhan, S/o Shatrughan Chauhan, aged about 30 years, (Driver - Non-applicant No. 1 ) Gopai Singh Thakur, S/o Shambhu Singh, aged about 32 years Both are resident of Vill. Pausara, Tahsil & Dist. Bilaspur (owner- Non-applicant No. 2) .A.No.729of2006 Bajaj Allianz General Insurance Company, Through - Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Applicant no.3) Versus Smt. Urmila Bai W/o Suryavanshi, aged about 30 years. Anand Suryavanshi, aged about 12 years. Kumar Late S/o Late Chaitram Chaitram lklii]il,l»B»,—:;;b

7. S/o Kumar Chaitram Ashish Late Suryavanshi, aged about 4 years. Ku. Anjali, D/o Late Chaitram Suryavanshi, aged about 9 years. Ku. Asha D/o Late Chaitram Suryavanshi, aged about 2 years (Claimants) The respondents No.2 to 5 through thelr naturai guardian mother Smt. Urmila Bai W/o Late Chaitram Suryavanshi, aged about 30 years and a!l are resident of viilage Pausara, Police Station Koni, Tahsi! and District BilaspurC.G. Sanjay Chauhan, S/o Shatrughan Chauhan, aged about 30 years, (Driver - Non-applicant No. 1) Gopai Singh Thakur, S/o Shambhu Singh, aged about 32 years.' Both are resident of Vi!!. Pausara, Tahsil & Dist. Bilaspur (owner- Non-appiicant No. 2) Shri Rajesh Pandey, learned counsel for the appeilant. Smt. Meera Jaiswal, learned counsei for the claimants. Shri Vimalesh Bajpai, (M.A.No.730of2006) iearned counsel respondents No.1 & 2 ORAL ORDER (Passed on 04th0ctober, 2006) The foilowing oral order of the Court was passed by S.R. Nayak, C.J. In all these appeals i.e. M.A.No.730 of 2006, M.A.No.731 of 2006, MA.No.722 of 2006, M.A.No.728 of 2006, M.A.No. 723 of 2006 and M.A.No.729 of 2006 preferred by the Insurance-Company under Section 173 ofthe Motor Vehicles Act, 1988 (for short the Act), the only question raised and argued is that though the M.A.C.T. has rightiy heid that the appel!ant-lnsurance Company is under no legal obiigation to pay compensation to the eiaimants, it has directed the Insurance-Company to ^^^^S5^-SSB<;:;-: ->/ © pay compensation in the first instance, and then to recover the same from theowner ofthe motorvehicle involved in the accident.

2. In M.A.Nos.731 of 2006, 723 of 2CX)6 and 729 of 2006, respondents-claimants have filed cross-objections for enhancement of compensation.

3. We have heard learned counsel for the parties. Shri Rajesh Pandey, learned counsel appearing for the appellant-lnsurance Company placing strong reliance on the judgment of the High Court of Bombay in the case of New India Assurance Co. Ltd..-v.Diwakar and Others1 would contend that the M.A.C.T. having held rightly that the Insurance- Company is under no legal obligation to pay compensation on the ground that there was breach of conditions of policy on the point of the owner of the motor vehicls involved in the accident, seriousiy erred in law in directing the Insurance-Company to pay a compensation in the first instance to the ciaimants and then to recover the same from the owner of the motor vehicle. ^

4. Per contra learned counsel appearing for the claimants, placing reiiance on Judgments of the Apex Court in the case of National insuranceCo. Ltd. v. Baljit Kaur and others , National Insurance Co. Ltd. v. Chalia Bharathamma and others , Pramod Kumar Agrawal and another v. Mushtari Begurm (Smt) and others and Nationai Insurance Co. Ltd. v. Bommithi Subbhyamma and others would