The Oriental Insurance Company v. Girwar Singh & Ors.

ORDER Postfor 31-03-2008 Sd/- Dilip Raosaheb Deshniukh Judge HtGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb Deshmukh. J. Miseetlaneous Apoeal (C.) No.1310 of 2007 UlN<^ ApDellant DefendantNo.3 Resoondent Claimant Respondent Defendant No.1 Resoondent Oefendant No.2 Insurance Company. The Oriental Divisional Manager, through Divisional OfRce, In front ofHighCourt, Bilaspur, New Adctress - In front of Rajeev Plaza, Bllaspur (C.G.) vereus

1. Shri Girwar Singh, 21 years, S/o Late Govind Singh, R/o Village—Nagpura, Chowki Belgahna, P.S. & Tahsil - Kota, Disfrict - Bilaspur (C.G.)

2. Shri Ranjeet Sjngh, 23 years, S/o Shri Pratap Singh Dhruv, R/o .VHIage - Tikarkala, P.S. Gourela, Tahsil - Pendra Road, Distrtct - Bilaspur (C.G.) - Driver -

3. Shri Manohar Singh, 40 years, S/o Shri Man Singh Raj, FVo Village - Chatauna, Chowki, Belgahna, P.S. & Tahsil - Kota, District - Bitaspur (C.G.)- - Owner - Aooeal under Sectjon 173 of the Motor Vehicles Act 1988 Present: Shri PrashantJaiswal, Senior Advocate with Ali Asgar, counsel for the appellant/insurer. Shri Gautam Khetrapal, counsel for respondent No.1/ claimant. No one appears for other respondents. ORDER (Passed on this 3/y' day of n/^-^ . 2008) The app^llant/insurer is aggrieved bythe award dated 24-07-2007 passed by the Vllith Motor Accidents Clajms Tribunal, F.T.<S,, Bilaspur 'the Tribunal') in Claim Case No.78/2006, whereby after (henceforth recording a finding that due to a breach ofthe poljcy condition the insurer v :<\ -^ x was not liable to pay compensation the Tribunal directed the insurer to first pay and recover (ater the compensation awarded from the owner and driver. (2) <n this appeal, the following facts are admjtted. Respondent No.l/ctaimant, a pedestrian, who sustained injury due to an,accident wjth 'the tractor') and Trolley 'the trolley') owned by respondent No.3 the Tractor No.CG-IO-A/1354 (henceforth No.CG-IO-A/1355 (henceforth and driven by respondent No.2 on 12-04-2004 is a third party. It js also not disputed ttiat the tractor was driven in contravention of the policy condition, i.e.. for a purpose other than agricultural purpose for which jt was jnsured. The quantum ofcompensation awarded by the Tribunal is also not in dispute. (3) The Tribunal held that the tractor having been jnsured for agricultural purpose was being used at the time of the accident contravention of the above condition of the policy of insurance and, therefore, the jnsurance company having proved the defence available to it under Section 149(2)(a) of the Motor Vehjdes Act, 1988 (hehceforth 'the Act') was not liabte to pay compensation. However, it directed that the insurer shall first pay the compensation and recover the same from the owner and the driver of the vehicte later. (4) Having heard the learned counsel for the parties, 1 am of the considered opinion that this appeal has no merit. In Unlted Indfa Insurance Company Umlted vs. Kunjb!hari Mishra anel others, Miscellaneous Appeal (C.) No.44 of 2007 decided on 26-Q2-2008, which is a complete answer to the question arisjng for determination jn this case, placjng reliance on New Indla Assurance Co., Shlmla vs. ^l ^-.' .y Kamfa ancf offters, AIR 2001 SC 1419, Natfonal Insurance Co. Ud. vs. Swaran Sfngh andl others, (20Q4) 3 SCC 297, Natfonal Insurance Co. Ltd. vs. Laxml Naraln Dhut, (2007) 3 SCC 700, Sardaii & Ors. v. Sushil Kumar and Ore., Appeal (Civil) No. 1733/2008 decjded on

04.03.2008 and Smfc Pushpsbai and others vs. Padumnath Maff and others, 2005 (5) MPHT 36 (Chhattisgarh), this Court has held that in case of a third party involvement in an acddent, the Tribunal has, even after recording a finding that insurer has successfujly established a defence available to it under Section 149(2)(a)(ii) of the Act, jurisdiction to order the insurer to pay the compensation first and recover it from the owner later after recording reasons for the same. It was also held that considering the fact that the owner and the driver of the offending vehicle djd not contest the application for compensation and remained ex parte, the Tribunal would be whody justified in ordering the insurance company to pay the compensation awarded and recover it from the owner. (5) In the present case also, respondent No.l/claimant, who sustained injury due to the accident is a third party. The owner and the driver of the vehicle did not contest the application for compensation. The fact that the offending vehtde was insured for agricultural purposes is also not in dispute. In this view of the matter, the Tribunal had ^. jurisdiction and was wholly justified in ordering the insurer to pay the compensation first and recover it later from the owner and the driver of the vehide after recording a finding that due to a breach of the specified condition of the 'insurance policy relating to use of ttie vehjcle, insurance company was not liable to pay compensation. (6) , The appeal has no merit and is accordingly dismissed. In the facts and circumstances of the case and also bearing in mind that the 1 '^. '%J?:' ^te owner and the driver did not contest the application for compensation (. and remained ex parte, jt js ordered that the insurer shatl deposit jn the Tribunal the quantum of compensation awarded to respondent No.l/claimant within two months. For the purpose of recovering the \- same from the jnsured, the insurer shall not be required to fite a suit. (t may initiate a proceeding before the concerned Executing Court as ifthe djspute between the insurer and the owner was the subject-matter of determjnation before the Tribunal and the issue js decided against the owner and in favour of the insurer. Before release of the amount, the Tribunal shalf jssue notice tp the insured requjring him to furnish security I 1 the entire amount whteh the insurer wiIJ pay to respondent No.l/dajmant. In case there js any default, the Executing Court shall, after releasing the amount in favour of the claimant, take steps to attach the offending vehicle as a part of the security and 1f necessify arises take the assistance of the concerned Regional Transport Authority. tt shall also be open to the Executing Court to direct realisation of the amount paid by the insurer by disposal of the securities to be furnished or from any other property or properties ofthe owner ofthevehide, the insured. Sd/- Dilip Raosaheb Deshmukh Judge Oopal