AI Structured Summary
Not yet generated for this judgment
Judgment
M.D. Shah, J.—These appeals under Sec. 173 of the Motor Vehicles Act have been filed by the original respondent No. 3-The Oriental Insurance Company Ltd. being aggrieved and dissatisfied with the common judgment and awards dated 7-8-2009 passed by the Motor Accidents Claims Tribunal(Aux.), FTC No. 3, Junagadh, in MACP Nos. 519 of 2007 and 502 of 2007 whereby the claimants were awarded compensation by holding that all the opponents were jointly and severally liable to pay the amount. Heard learned advocates for the respective parties.
It is submitted by learned advocate for the appellant Insurance Company that the policy was an "Act only" policy and risk of such passengers is not covered under the said policy as additional premium is not paid to cover such risk and since risk of such passengers were not covered under Sec. 147 of the Motor Vehicles Act, insurance company is not liable to pay any compensation, however, it is held by the Tribunal that insurance company is also liable to pay compensation and thereby the Tribunal has committed error.
It is submitted by learned advocate Mrs. Nisha M. Parikh for the claimant and Mr. Amar Mithani for the respondent Nos. 3 and 4, who are driver and owner of the vehicle that the Tribunal has not committed any error as, after considering the evidence on record, legal and proper order is passed by the Tribunal. According to them, insurance company is also liable to pay compensation but insurance company is at liberty to recover from the owner of the vehicle.
This Court has gone through the impugned judgment and awards. Prima facie it seems that admittedly the policy was an "Act only" policy and risk of such passengers is not covered under the policy and, therefore, insurance company is not liable to pay any compensation. It has been held by the Hon''ble Supreme Court in the case of The General Manager, United Insurance Co. Ltd. Vs. M. Laxmi and Others, insurance company was exonerated on the ground of "Act only" policy. In view of the above, insurance company is required to be exonerated from liability.
On the aspects of quantum, considering the oral as well as documentary evidence, just and adequate compensation has been awarded by the Tribunal which is just and proper.
As far as pay and recovery is concerned, this Court (Coram: Chief Justice) in First Appeal No. 2121 of 2008 relying upon several judgments of Hon''ble Apex Court, has held that direction to pay the amount and to recover amount can only be given in exercise of power conferred under Article 142 of the Constitution of India. It has been observed by this Court in paragraphs 12.2, 13 and 14 as under:
12.2 The above observations make it clear that the direction to pay the amount first and then to recover such amount can only be given in exercise of power conferred under Article 142 of the Constitution and the Supreme Court in the peculiar facts of the above case, exercised such power notwithstanding the pendency of reference to the larger bench.
Be that as it may, there is no scope of passing such a direction either at the instance of the Tribunal below or of this court in this appeal u/s 173 of the Act.
On consideration of the entire materials on record, I, therefore, hold that the learned Tribunal below erred in law in passing the direction upon the Insurance Company to pay the amount and then recover such amount notwithstanding its finding that the Insurance Company has no liability to pay the amount as the victims are not the third parties within the meaning of law.
In view of the above observations of this Court, order to pay the amount and then to recover such amount from the owner can only be passed in exercise of power conferred under Article 142 of the Constitution of India and the Hon''ble Supreme Court in the peculiar facts of the above case, exercised such power notwithstanding the pendency of reference to the larger bench. In view of the above, claim petitions against the appellant-insurance company is required to be dismissed and appeals are required to be allowed.
In view of the above, appeals are partly allowed. Claim petitions are dismissed only qua insurance company. Impugned judgment and awards qua other original opponents and all other aspects remain unchanged. It is clarified that if any amount is paid by the insurance company in pursuance of the directions of this Court, same will not be recovered from the claimants but insurance company will be at liberty to recover it from the owner of the vehicle. Excess amount, if any, lying deposited by the insurance company shall be refunded to it. Amount, if any, lying deposited in the Registry of this Court shall be transmitted to the Tribunal. There shall be no order as to costs.
Records and proceedings are ordered to be sent back forthwith. Office shall place a copy of this judgment in each matter.