Mr. Prashant Sharma for & Ors. v. Kusum Rai & Ors.

Mr. Prashant Sharma for the appellant. Mr. J.P. Gupta for the respondents. **** The present civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 is filed by the appellant United India Insurance Company Ltd. against the impugned judgment/Award dated 04.03.1998 passed by the Motor Accident Claims Tribunal, Beawar (for short 'the Tribunal') in Claim Petition No. 299/1996, whereby an award of Rs. 2,31,200/- has been passed in favour of the claimants/respondents with interest @ 12% p.a. payable from 31.05.1996. The appellant Insurance Company has challenged the impugned Award on the ground that in view of the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Vs. Gyan Chand, as the owner of the vehicle i.e respondent opposite party No.1 had remained ex- parte in the face of the plea of the Insurance Company, the Tribunal has committed a gross error [2] in holding the appellant Insurance Company jointly liable with the owner of the vehicle for payment of compensation awarded by the Tribunal.

As per the appellant Insurance Company, it had taken a specific plea that the insured vehicle was not being driven by a person duly licensed under the provisions of th Motor Vehicles Act and the owner of the vehicle failed to rebut the case of the appellant Insurance Company and did not even appear before the Tribunal. In view of these aspects, the appellant Insurance Company could not have been held liable for the payment of compensation merely with reference to it having insured the vehicle in question. I have heard rival submissions of the respective parties and carefully gone through the record of the case as also the impugned judgment dated 04.03.1998 passed by the Tribunal. Hon'ble the Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan & Ors., reported in AIR 2007 SC 1971, has held that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.

It has been further observed that it is [3] well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue directions for doing complete justice to the parties. Hon'ble the Supreme Court in the case of National Insurance Company Ltd. V. Kusum Rai & Others, (2006) 4 SCC 250, has observed that

Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan.

It is not disputed that the claim petition has been filed by the claimants/ respondents under Section 163-A of the Motor Vehicles Act and so far as the award passed by the Tribunal in favour of the claimants/ respondents to the tune of Rs.