Punjab-Haryana High Court
Bajaj Allianz General Insurance ... vs Biri Bai And Others on 17 February, 2010
Author: Rajesh Bindal
Bench: Rajesh Bindal
FAO No. 919 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 17.2.2010
(1) F.A.O. No. 919 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
.. Appellant
v.
Biri Bai and others
..Respondents.
(2) F.A.O. No. 920 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
.. Appellant
v.
Ashok Kumar and others
..Respondents.
(3) F.A.O. No. 921 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
.. Appellant
v.
Jassi and others
..Respondents.
(4) F.A.O. No. 1251 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
.. Appellant
v.
Banti Devi and others
..Respondents.
(5) F.A.O. No. 1256 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
.. Appellant
v.
Inderjit Singh and others
..Respondents.
FAO No. 919 of 2009 [2]
(6) Civil Revision No. 2580 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
.. Appellant
v.
Darshan Singh and others
..Respondents.
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Ashwani Talwar, Advocate for the appellant.
Mr. Sunil K. Sharma, Advocate for respondents No. 1 to 7
in FAO Nos. 919 and 1251 of 2009, respondent No. 1 in FAO
No. 1256 of 2009 and respondents No. 1 to 3 in FAO
No. 921 of 2009.
...
Rajesh Bindal J.
This order shall dispose of the above-mentioned five appeals and the revision, as the same arise out of a common award.
The Insurance Company is in appeal against the award dated 27.11.2008, passed by Motor Accidents Claims Tribunal, Ambala (for short, `the Tribunal').
However, the facts have been extracted from FAO No. 919 of 2009. Briefly, the facts of the case are that on 21.4.2007, some persons were standing at Gagan Chowk Rajpura for going to different places situated at G.T. Road, i.e., Sirhind, Khanna, Gobindgarh and Ludhiana etc. At about 5.00 a.m., a Scorpio jeep No. HR-12-L-0034 came from Ambala side and on their request, the driver of the jeep gave them lift up to their respective destinations. The jeep was being driven rashly and negligently by its driver. When the jeep reached in the area of Ambe Majra, the driver of the jeep tried to overtake a truck going ahead of it from the wrong side and in that process the jeep struck against the left side rear portion of the truck. As a result of the accident, three persons died at the spot and others received injuries. In the petitions filed by the claimants for compensation, the learned Tribunal held that at the first instance, the appellant shall deposit the awarded amount of compensation and thereafter it shall recover the same from the owner of the jeep.
FAO No. 919 of 2009 [3]The only ground on which the award of the learned Tribunal is sought to be challenged is that in spite of the fact that the Insurance Company was not held liable, still it has been directed to satisfy the award first and thereafter recover the same from the owner of the offending vehicle. It is submitted that once the Tribunal found that the Insurance Company is not liable, there was no question of issuing direction for satisfaction of the award at the first instance by it.
On the other hand, learned counsel for the respondents submitted that in view of numerous judgments of Hon'ble the Supreme Court, the directions issued by the learned Tribunal, which are sought to be challenged by the Insurance Company, cannot be faulted with.
After hearing learned counsel for the parties and considering the consistent view of Hon'ble the Supreme Court, I do not find any reason to interfere with the impugned award. It is only that recently in National Insurance Co. Ltd. and others v. Parvathneni and another, (2010-1) 157 PLR 228 (SC), a Bench of Hon'ble the Supreme Court expressed its reservation regarding the earlier judgments and the matter was referred to Hon'ble the Chief Justice of India for constituting a larger Bench. The relevant paragraphs thereof are extracted below:
"7. No doubt, there are some decisions which have taken the veiw that even if the insurance compnay has no liability, yet it must pay and later on recover it from the owner of the vehicle. [See for example National Insurance Co. Ltd. v. Yellamma and another, (2008-4) 151 PLR 761 (SC): (2008) 7 SCC 526, Samundra Devi v. Narendra Kaur, (2007-4) 148 PLR 88 (SC): (2008) 9 SCC 100 (vide para 16), Oriental Insurance Co. v. Brij Mohan, (2007) 7 SCC 56 (vide para 13), New India Insurance Co. v. Darshan Devi, (2008) 7 SCC 416 (vide para 21), etc.].
8. We have some reservations about the correctness of the aforesaid decisions of this Court. If the insurance company has no liability to pay at all, then, in our opinion, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. When a person has no liability to pay at all how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.FAO No. 919 of 2009 [4]
9. Hence, we direct that the papers of this case be placed before Hon'ble the Chief Justice of India for constituting a larger bench to decide the following questions:
"(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle.
(2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142?
Does Article 142 permit the Court to create a liability where there is none?"
In view of the legal position, as it stands today, no fault can be found with the directions issued by the learned Tribunal.
Accordingly, the appeals as well as the revision are dismissed.
(Rajesh Bindal) Judge 17.2.2010 mk