Hon'ble Ashwani Kumar Mishra,J.
1. These three appeals under Section 173 of Motor Vehicles Act, contain the same controversy and the impugned award dated 7.5.2010 delivered by the Motor Accident Claims Tribunal in Claim Petition No.282 of 1997 and judgment and award dated 7.5.2010 in Claim Petition No.377 of 1997.
2. The appellant Oriental Insurance Company Limited, Lucknow, is aggrieved by the directions issued by the Tribunal to recover the compensation from the owner of the vehicle whereas, the claimant respondents while preferring appeal, make prayer for enhancement of compensation. Since all the three appeals relate to same award, hence they are decided by the present common judgment with the consent of parties counsel.
3. In brief, when on 26.4.1997, when the deceased Amit Kumar Shukla along with his father Pradeep Kumar Shukla, and mother Smt. Nirala Shukla as well as sister Km. Arjita, was on way to residence on Scooter No.UAG-277, from Jankipuram to Daliganj, in the night at about 8:45 p.m., a Mahindra Jeep No.UP-41-A/4435 coming from reverse direction driven rashly and negligently, hit the scooter resulting into accident in question. Deceased Ajit Kumar Shukla and others suffered grievous injuries. All were admitted to Medical College, Lucknow but the life of deceased Amit Kumar Shukla could not be saved and on 27.4.1997, he succumbed to injuries.
4. The claimant respondents approached the Tribunal by preferring claim petitions for payment of compensation. Deceased Amit Kumar Shukla was aged about 4 years and a student of Class-I. The Tribunal framed requisite issues during the pendency of proceedings and recorded finding that accident occurred on account of rash and negligent driving of the vehicle and awarded compensation to the tune of Rs.4,18,000/-
5. The solitary argument advanced by the learned counsel for the appellant is that the Tribunal has not considered the factual averments made before it that the driving license was fake one. However, right to recover the compensation has been given to the appellant on the ground that there was breach of policy condition since the Jeep in question was not having permit. Accordingly, the submission of the appellant's counsel representing Oriental Insurance Company Limited is that instead of giving right of recovery, the compensation should have been recovered from the owner straight way.
6. Learned counsel for the appellant relied upon the case reported in 2013 (3) T.A.C. 29 (S.C.): United India Insurance Co. Ltd., through its Divisional Manager Vs. Sujata Arora and others, and one other case reported in 2009 (4) T.A.C. 382 (S.C.): National Insurance Co. Ltd. Vs. Parvathneni and another.
7. On the other hand, learned counsel for the respondents claimants submits that exercise of power with regard to right of recovery is discretionary power exercised by the Tribunal and should not be interfered with. Learned counsel for the respondents claimants relied upon the case reported in 2013 ACJ 1944 (SC): S. Iyappan Vs. U.I.I.Co. Ltd. [Three Judges Bench D/o 01.07.2013].
8. The judgment relied upon by the learned counsel for the appellant as well as learned counsel for the respondents claimants, seem to contain different ratio based on facts and circumstances of each case. In the case of S. Iyappan (supra) in para 25, their lordships of Hon'ble Supreme Court after considering the earlier judgments, observed as under:-
"(25) The position can be summed up thus: The insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due inquiries and bona fidely believed that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the insurance company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimant third parties) from the insured person."
9. Thus, it appears that in some of the cases Hon'ble Supreme Court expressed view that compensation should be recovered from the owner straight away instead of directing the Insurance Company to deposit the compensation and thereafter recover the same from the owner of the vehicle. However, in other case conflicting view has been expressed where in the event of breach of policy, Insurance Company has been required to pay compensation which may be recovered from the owner of the vehicle. It appears that the right of recovery is an issue which is to be dealt with on the basis of facts and circumstances of each case. In appropriate cases, in case Tribunal exercises discretion directing Insurance Company to recover the compensation from the owner in the event of breach of policy condition, then the direction issued by the Tribunal should ordinarily, be not interfered with.
10. The Motor Vehicles Act is a welfare legislation. We cannot close our eyes on the ground realities and where the dependant of deceased run from pillar to post. It is the statutory duty of the Insurance Company to recover compensation from the owner of the vehicle keeping in view the longevity involved in the judicial process. Insurance Companies are discharging welfare statutory burden in public interest. In case the burden is shifted over them to recover the compensation from the the owner of the vehicle, it shall be comparatively better steps on the part of the courts instead of relegating the duty on the part of the claimant to recover dues from the owner of the vehicle. In this country where substantial population is below poverty line and illiterate, it is not easy to recover from owner by indulging in litigation.
11. Apart from the above, Section 149 of Motor Vehicles Act, contains statutory mandate assigning duty to the ensurer to satisfy the judgment and award against the person ensured for of third party risk. For convenience, relevant portion of Section 149 of the Motor Vehicles Act is reproduced as under:-
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.
1. If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
2. No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
a. That there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
i. a condition excluding the use of the vehicle--
a. For hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or b. For organised racing and speed testing, or c. For a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a Transport vehicle, or d. Without side-car being attached where the vehicle is a motor cycle; or ii. a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or iii. A condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or Civil commotion; or b. that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."
12. Sub-Section 1 of Section 149 is the statutory mandate with regard to payment of compensation under Motor Vehicle Act. Whereas Section 2 deals with the situation where insurer may defend itself from sharing the liability to pay compensation. The finding recorded by the court or tribunal to pay compensation possessed element of positivity. Whereas non payment of compensation under certain condition as provided by Sub-Section 2 of Section 149 deals with the situation where insurance company may not held to be responsible Sub-section 2 in any case does not deprive the claimant to claim compensation in the event of fatal accident by an insured vehicle. In case, insurance company is not liable under certain conditions then owner of the vehicle shall be responsible to pay compensation. Keeping in view the mandate as contained in Sub-section 1 of section 149 in case the insurance company is directed to pay compensation with right of recovery it shall fulfill the statutory obligation and intent of legislation. Once vehicle is insured the first charge shall be on the insurance company to pay compensation and only in the event of breach of permit condition the owner may be held responsible to pay compensation or satisfy award. Accordingly, the insurance company may be directed to pay compensation in terms of award to satisfy its statutory obligation and then recover the same from owner in the event of breach of policy conditions in view of sub-section (2) of Section 149.
13. Keeping in view the statutory mandate as contained in Section 149 of the Motor Vehicles Act, coupled with the judgment of Hon'ble Supreme Court, we are of the view that the Tribunal has committed no illegality in directing the appellant Insurance Company to pay the compensation and thereafter, recover the same from the owner of the vehicle. Apart from the above, Section 174 provides to recover the compensation as arrears of land revenue. The procedure prescribed under Section 174 Motor Vehicles Act, is not applicable to the cases where compensation is sought to be recovered from the owner of the vehicle. In case the Insurance Company after satisfying the award proceed to recover the outstanding dues from the owner, then the provisions contained in Section 174 of the Motor Vehicles Act shall equally be applicable to recover the outstanding dues as arrears of land revenue from the owner of the vehicle. It shall speed up the recovery process and satisfy the award within reasonable period.
14. The claimant respondents while preferring the cross appeal has made prayer for enhancement of compensation. The Tribunal awarded the compensation after considering the relevant acts and circumstances as well as the injuries caused and expenses incurred thereon. The attention of the Court has not been invited to any perversity in the impugned award delivered by the Tribunal while awarding compensation. Well reasoned order has been passed by the Tribunal.
15. In view of the above, the appeal preferred by the Insurance Company as well as the claimant respondents fails. Let entire compensation be deposited before the Tribunal within three months and shall be released to the claimant respondents in terms of award by Tribunal within two months. Any application moved by the Insurance Company for recovery, that shall be processed by the Tribunal expeditiously keeping in view the observations made in the body of the judgments. The amount deposited in this Court shall be remitted to the Tribunal forthwith.
The appeals are dismissed. Costs easy.