IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM M.F.A.No.3863 OF 2015 (MV-I) C/W M.F.A.No.3859 OF 2015(MV-D) C/W M.F.A.No.3861/2015(MV-D) C/W M.F.A.NO.3865 OF 2015 (MV-I) IN M.F.A.No.3863/2015 BETWEEN:
KUMARI BHAVANA N., D/O LATE NARENDRANATH, AGED ABOUT 5 YEARS, APPELLANT BEING THE MINOR, REPRESENTED BY HER PATERNAL GRANDFATHER AND NATURAL GUARDIAN DR.RAJANNA P., AGED ABOUT 75 YEARS, RESIDING AT NO.2666/A, 2ND STAGE, 12TH MAIN, E BLOCK, RAJAJINAGAR, BANGALORE – 560 010. … APPELLANT (BY SRI. T.PRAKASH, ADVOCATE) AND:
1. THE ICICI LOMBARD GEN. INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI – 400 034.
POLICY ISSUED OFFICE, POLICY NO.3004/525858288/02/000 VALID FROM 24/09/2009 TO 23/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-53-4453) 1(a) THE ICICI LOMBARD GEN. INSURANCE CO.LTD. BY ITS REGIONAL MANAGER, NO.89, P V R COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE – 560 068.
2. SMT. RASHMI NAGANNA, W/O NAGANNA, NO.5, 7TH MAIN, B. NARAYANAPURA, DOORVANINAGAR POST, BANGALORE – 560 016. (OWNER OF THE CAR BEARING REGISTRATION NO.KA-53-4453) 3. FUTURE GENERAL INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER, PASADENA NO.18/1, (OLD NO.125/A) 3RD FLOOR, ASHOKA PILLAR ROAD, I BLOCK, JAYANAGAR, BANGALORE – 560 082, POLICY NO.2009-V04/2076-FTX, VALID FROM 18/09/2009 TO 17/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-03-C-5323) 4. M/S. METRO TAXI, REPRESENTED BY ITS PARTNER, NO.38/3, LAKE POINT, MEANEE AVENUE, BANGALORE – 560 042, (OWNER OF THE CAR BEARING REG.NO.KA-03-C-5323) 5. THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.363, SHRI HARI COMPLEX, SEETHE VILAS ROAD, MYSORE – 570 024.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) POLICY NO.OG-11-1705/1801/00001054 VALID FROM 21-05-2010 TO 20-05-2011 5(a). THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.31, T B R TOWER, I FLOOR, NEW MISSION ROAD, BANGALORE – 560 002.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) 6. ARAVIND, S/O HASTHIMAL JAIN, JANARDANA TEMPLE ROAD, V C FARM, MANDYA – 571 401.
(INSURER OF THE CAR BEARING REGISTRATION NO.KA-11-M-3433). … RESPONDENTS (BY SRI.D.MANJUNATH, ADVOCATE FOR R1 AND R1(a); SRI.RAVI S SAMPRATHI, ADVOCATE FOR R3; SRI.S.KRISHNA KISHORE, ADVOCATE FOR R5 AND R5(a); R2, R4 AND R6 ARE SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.01.2015 PASSED IN MVC NO.2581/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.3859/2015 BETWEEN:
1. DR.RAJANNA P., S/O LATE PUTTAPPA, AGED ABOUT 75 YEARS, 2. KUMARI MEGHANA N., D/O LATE NARENDRANATH, AGED ABOUT 11 YEARS, 3. KUMARI BHAVANA N D/O LATE NARENDRANATH, AGED ABOUT 5 YEARS, APPELLANTS NOS.2 AND 3 ARE MINORS, REPRESENTED BY APPELLANT NO.1, WHO IS THE PATERNAL GRANDFATHER AND NATURAL GUARDIAN DR.RAJANNA P, ALL ARE RESIDING AT NO.2666/A, 2ND STAGE, 12TH MAIN, E BLOCK, RAJAJINAGAR, BANGALORE – 560 010. … APPELLANTS (BY SRI. T.PRAKASH, ADV.) AND:
1. THE ICICI LOMBARD GEN. INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI – 400 034.
POLICY ISSUED OFFICE, POLICY NO.3004/525858288/02/000 VALID FROM 24/09/2009 TO 23/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-53-4453) 1(a) THE ICICI LOMBARD GEN. INSURANCE CO.LTD. BY ITS REGIONAL MANAGER, NO.89, P V R COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE – 560 068.
2. SMT. RASHMI NAGANNA, W/O NAGANNA, NO.5, 7TH MAIN, B. NARAYANAPURA, DOORVANINAGAR POST, BANGALORE – 560 016.
(OWNER OF THE CAR BEARING REGISTRATION NO.KA-53-4453) 3. FUTURE GENERAL INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER, PASADENA NO.18/1, (OLD NO.125/A) 3RD FLOOR, ASHOKA PILLAR ROAD, I BLOCK, JAYANAGAR, BANGALORE – 560 082.
POLICY NO.2009-V04/2076-FTX, VALID FROM 18/09/2009 TO 17/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-03-C-5323) 4. M/S. METRO TAXI, REPRESENTED BY ITS PARTNER, NO.38/3, LAKE POINT, MEANEE AVENUE, BANGALORE – 560 042.
(OWNER OF THE CAR BEARING REG.NO.KA-03-C-5323) 5. THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.363, SHRI HARI COMPLEX, SEETHE VILAS ROAD, MYSORE – 570 024.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) POLICY NO.OG-11-1705/1801/00001054 VALID FROM 21-05-2010 TO 20-05-2011 5(a). THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.31, T B R TOWER, I FLOOR, NEW MISSION ROAD, BANGALORE – 560 002.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) 6. ARAVIND, S/O HASTHIMAL JAIN, JANARDANA TEMPLE ROAD, V C FARM,MANDYA – 571 401.
(INSURER OF THE CAR BEARING REGISTRATION NO.KA-11-M-3433). … RESPONDENTS (BY SRI.D.MANJUNATH, ADVOCATE FOR R1 AND R1(a); SRI.RAVI S SAMPRATHI, ADVOCATE FOR R3; SRI.S.KRISHNA KISHORE, ADVOCATE FOR R5 AND R5(a); SRI.G.SHANKAR GOUD, ADVOCATE FOR R6;
NOTICE TO R2 HELD SUFFICIENT VIDE ORDER DATED 26.09.2019; R4 IS SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.01.2015 PASSED IN MVC NO.2580/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.3861/2015 BETWEEN:
1. DR.RAJANNA P., S/O LATE PUTTAPPA, AGED ABOUT 75 YEARS, 2. KUMARI MEGHANA N., D/O LATE NARENDRANATH, AGED ABOUT 11 YEARS, 3. KUMARI BHAVANA N.
D/O LATE NARENDRANATH, AGED ABOUT 5 YEARS, APPELLANTS NOS.2 AND 3 ARE MINORS, REPRESENTED BY THE APPELLANT NO.1, WHO IS THE PATERNAL GRANDFATHER AND NATURAL GUARDIAN DR.RAJANNA P, ALL ARE RESIDING AT NO.2666/A, 2ND STAGE, 12TH MAIN, E BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
4. P.SUNDAR, S/O SESHAPPA, AGED ABOUT 76 YEARS, R/AT 48, 11TH ‘A’ CROSS, DEFENCE COLONY, BAGALUGUNTE, BANGALORE – 57.
(DELETED AS PER COURT ORDER DATED 26/8/2019) … APPELLANTS (BY SRI. T.PRAKASH, ADVOCATE) AND:
1. THE ICICI LOMBARD GEN. INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI – 400 034.
POLICY ISSUED OFFICE, POLICY NO.3004/525858288/02/000 VALID FROM 24/09/2009 TO 23/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-53-4453) 1(a) THE ICICI LOMBARD GEN. INSURANCE CO.LTD. BY ITS REGIONAL MANAGER, NO.89, P V R COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE – 560 068.
2. SMT. RASHMI NAGANNA, W/O NAGANNA, NO.5, 7TH MAIN, B. NARAYANAPURA, DOORVANINAGAR POST, BANGALORE – 560 016. (OWNER OF THE CAR BEARING REGISTRATION NO.KA-53-4453) 3. FUTURE GENERAL INDIA INSURANCE CO. LTD.
REPRESENTED BY ITS MANAGER, PASADENA NO.18/1, (OLD NO.125/A) 3RD FLOOR, ASHOKA PILLAR ROAD, I BLOCK, JAYANAGAR, BANGALORE – 560 082, POLICY NO.2009-V04/2076-FTX, VALID FROM 18/09/2009 TO 17/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-03-C-5323) 4. M/S. METRO TAXI, REPRESENTED BY ITS PARTNER, NO.38/3, LAKE POINT, MEANEE AVENUE, BANGALORE – 560 042, (OWNER OF THE CAR BEARING REG.NO.KA-03-C-5323) 5. THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.363, SHRI HARI COMPLEX, SEETHE VILAS ROAD, MYSORE – 570 024.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) POLICY NO.OG-11-1705/1801/00001054 VALID FROM 21-05-2010 TO 20-05-2011 5(a). THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.31, T B R TOWER, I FLOOR, NEW MISSION ROAD, BANGALORE – 560 002.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) 6. ARAVIND, S/O HASTHIMAL JAIN, JANARDANA TEMPLE ROAD, V C FARM, MANDYA – 571 401.
(OWNER OF THE CAR BEARING REGISTRATION NO.KA-11-M-3433). … RESPONDENTS (BY SRI. D.MANJUNATH, ADVOCATE FOR R1 AND R1(a);
SRI.RAVI S SAMPRATHI, ADVOCATE FOR R3; SRI.S.KRISHNA KISHORE, ADVOCATE FOR R5 AND R5(a); SRI.S.P.BORE GOWDA, ADVOCATE FOR R6;
NOTICE TO R2 AND R4 HELD SUFFICIENT VIDE ORDER DATED 26.09.2019) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.01.2015 PASSED IN MVC NO.2582/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.3865/2015 BETWEEN:
KUMARI MEGHANA N., D/O LATE NARENDRANATH, AGED ABOUT 11 YEARS, APPELLANT BEING THE MINOR, REPRESENTED BY HER PATERNAL GRANDFATHER AND NATURAL GUARDIAN DR.RAJANNA P, AGED ABOUT 75 YEARS, RESIDING AT NO.2666/A, 2ND STAGE, 12TH MAIN, E BLOCK, RAJAJINAGAR, BANGALORE – 560 010. … APPELLANT (BY SRI. T.PRAKASH, ADVOCATE) AND:
1. THE ICICI LOMBARD GEN. INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI – 400 034.
POLICY ISSUED OFFICE, POLICY NO.3004/525858288/02/000 VALID FROM 24/09/2009 TO 23/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-53-4453) 1(a) THE ICICI LOMBARD GEN. INSURANCE CO.LTD. BY ITS REGIONAL MANAGER, NO.89, P V R COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE – 560 068.
2. SMT. RASHMI NAGANNA, W/O NAGANNA, NO.5, 7TH MAIN, B. NARAYANAPURA, DOORVANINAGAR POST, BANGALORE – 560 016. (OWNER OF THE CAR BEARING REGISTRATION NO.KA-53-4453) 3. FUTURE GENERAL INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER, PASADENA NO.18/1, (OLD NO.125/A) 3RD FLOOR, ASHOKA PILLAR ROAD, I BLOCK, JAYANAGAR, BANGALORE – 560 082, POLICY NO.2009-V04/2076-FTX, VALID FROM 18/09/2009 TO 17/09/2010 (INSURER OF CAR BEARING REGISTRATION NO.KA-03-C-5323) 4. M/S. METRO TAXI, REPRESENTED BY ITS PARTNER, NO.38/3, LAKE POINT, MEANEE AVENUE, BANGALORE – 560 042, (OWNER OF THE CAR BEARING REG.NO.KA-03-C-5323) 5. THE BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.363, SHRI HARI COMPLEX, SEETHE VILAS ROAD, MYSORE – 570 024.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) POLICY NO.OG-11-1705/1801/00001054 VALID FROM 21-05-2010 TO 20-05-2011 5(a). THE BAJAJ ALLIANZ GEN.INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, NO.31, T B R TOWER, I FLOOR, NEW MISSION ROAD, BANGALORE – 560 002.
(INSURER OF CAR BEARING REGISTRATION NO.KA-11-M-3433) 6. ARAVIND, S/O HASTHIMAL JAIN, JANARDANA TEMPLE ROAD, V C FARM, MANDYA – 571 401.
(OWNER OF THE CAR BEARING REGISTRATION NO.KA-11-M-3433). … RESPONDENTS (BY SRI.D.MANJUNATH, ADVOCATE FOR R1 AND R1(a); SRI.RAVI S SAMPRATHI, ADVOCATE FOR R3; SRI.S.KRISHNA KISHORE, ADVOCATE FOR R5 AND R5(a); NOTICE TO R2 HELD SUFFICIENT VIDE ORDER DATED 26.09.2019; R4 AND R6 SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.01.2015 PASSED IN MVC NO.2583/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, SATYANARAYANA, J., DELIVERED THE FOLLOWING:
JUDGMENT These four appeals in MFA.Nos.3859, 3861, 3863 and 3865 of 2015 are filed by the claimants in MVC.Nos.2580 to 2583 of 2012 on the file of the MACT, Bengaluru. Admittedly, two claim petitions were filed seeking compensation for the death of Dr.Narendranath, an ENT surgeon and his wife Smt.Parinita. Another two claim petitions were filed seeking compensation for injuries suffered by their children Kumari Bhavana and Kumari Meghana. All these four claim petitions were disposed of by common judgment dated 19.01.2015, wherein the compensation which was determined as payable to the claimants was ordered to be paid by the owner of the offending vehicle namely car bearing registration No.KA53 4453 insured with the 1st respondent – ICICI Lombard General Insurance Company Limited.
2. It is in this background, these four appeals are filed.
Though they are in the nature of appeals filed seeking enhancement of compensation, the main prayer is with reference to shifting of liability to pay compensation on the insurer of the offending vehicle namely the 1st respondent – ICICI Insurance Company with liberty to them to recover the same from the registered owner of the said vehicle relying upon the judgments in the matter of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND OTHERS reported in AIR 2018 SC 592 and also SHAMANNA AND ANOTHER Vs. DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported in AIR 2018 SC 3726. While making such prayer, there is also incidental prayer seeking enhancement of compensation which was awarded by the Tribunal.
3. Brief facts leading to these appeals are that, on 28.08.2010, family of Dr.Narendranath including his wife and two children were traveling in their car bearing registration No.KA11 M 3433 from Mandya to Bengaluru. When the said car was traveling between old Bidanur and new Bidanur on Bengaluru – Mysuru State Highway, the said car was hit by another car bearing registration No.KA53 - 4453 coming from opposite side in a rash and negligent manner. It is seen that the manner in which the said car was driven was so rash that before hitting the car in which the family of Dr.Narendranath was traveling, the said car hit another car bearing registration No.KA03 C 5323 and thereafter hit the car belonging to Dr. Narendranath resulting in the death of Dr.Narendranath and his wife Smt.Parinita and also causing injuries to their two daughters namely Kumari Bhavana and Kumari Meghana. A complaint was lodged in that behalf with Mandya Rural Police Station, which was registered as FIR against the driver of the offending car bearing registration No.KA53 - 4453 and subsequently, after investigation charge sheet was also filed against him.
4. In the aforesaid background, two claim petitions came to be filed seeking compensation for the death of Dr.Narendranath and his wife Smt.Parinita and other two claim petitions by their children seeking compensation for the injuries suffered in the accident. After recording evidence, the Tribunal allowed all the four claim petitions, awarding a sum of Rs.34,00,000/- as compensation for the death of Dr.Narendranath, a sum of Rs.1,05,000/- as compensation for the death of Smt.Parinita, a sum of Rs.1,32,000/- as compensation for the injuries suffered by Kumari Bhavana and a sum of Rs.1,58,000/- as compensation for the injuries suffered by Kumari Meghana along with interest at 8% p.a.
from the date of petition till realization of the amount. However, while deciding the aspect of liability to pay compensation, the Tribunal felt that in the absence of driver of offending car bearing registration No.KA53 4453 not having license to drive, the liability to pay compensation was shifted on the shoulder of owner of offending vehicle. It is in this background, as stated supra, all these four appeals are filed relying upon the aforesaid judgments seeking to shift the liability to pay compensation on the 1st respondent insurer namely M/s. ICICI Lombard General Insurance Company Limited.
5. However, in these proceedings though three insurance companies are arraigned as Respondent Nos.1, 3 and 5, the appellants are seeking to shift the liability to pay compensation on 1st respondent – ICICI Lombard General Insurance Company Limited, which has insured the offending vehicle. Hence, the 1st respondent-insurer opposes these appeals relying upon the judgment rendered by the Apex Court in the matter of NATIONAL INSURANCE COMPANY LIMITED Vs. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297. The learned Counsel for 1st respondent would assert that in the said matter, the Full Bench of the Apex Court has specifically dealt with the liability of the insurer in a case where the driver of the offending vehicle did not have any kind of licence. He would contend that in such circumstances, it is held in the aforesaid Judgment that the practice of pay and recovery should not be continued. Though it is asserted in the aforesaid manner by taking this Court through paragraph 4 of the said judgment where the points which are raised for consideration are totally five in number as (a) to (e), the consideration with reference to driver not having any license whatsoever is at 4(b) and taken up for consideration in paragraphs 84 to 87 as well as in paragraph 110 of the judgment, where there is reference as to liabilities of the insurance company. Paragraph 110 reads as under:
“110. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) ……..
(ii) ……..
(iii) The breach of policy condition e.g., disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue”.
The learned counsel for 1st respondent taking this Court through aforesaid paragraph in the Judgment would assert that reading of said paragraph would clearly indicate that liability of paying compensation by the Insurance Company with liberty to recover the same is not found either in paragraphs 84 to 87 or in paragraph 110 of the said judgment.
6. This Court is unable to accept his line of argument so far as the liability of the 1st respondent to pay the compensation and thereafter to recover the same from the owner of the vehicle who entrusted the same to the driver not having any license. In view of subsequent judgment in the matter of Pappu referred to supra rendered by the Bench of same strength as that of Swaran Singh’s matter and also by relying upon the judgment in the matter of Shamanna referred to supra, it is clear that the said position is no longer res integra and accordingly, the 1st respondent - insurer cannot escape from the liability of paying compensation and thereafter, proceed to recover the same from its owner. With such observation, we conclude with reference to the liability of the 1st respondent - insurer to pay compensation and also the right of the appellants to receive compensation from the insurer of the offending vehicle which was one of the prayer made by them.
7. However, with regard to the second prayer in each of the appeals is for enhancement of compensation. As discussed supra, these appeals are filed basically with an intention to getting the liability to pay compensation shifted on the shoulder of the insurer. The prayer seeking enhancement of compensation is only incidental. On going through the material on record, we are of the considered view that compensation awarded by the Tribunal for the death of Dr.Narendranath and Smt.Parinita as well as compensation determined for the injuries suffered by Kumari Bhavana and Kumari Meghana appears to be just and proper.
8. Therefore, the same does not call for reassessment of compensation required to be paid to them and consequently to enhance the same. Accordingly, four appeals are disposed of as under:
(i) That the 1st respondent - insurance company to pay compensation to the claimants which is determined by the Tribunal in aforesaid claim petitions. While doing so, liberty is reserved to the 1st respondent - insurance Company to recover the said compensation along with interest from the owner of the offending vehicle.
(ii) So far as the prayer of the appellant seeking enhancement of the compensation is concerned, the same is rejected.
Sd/- JUDGE Sd/- JUDGE PKS