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12. Learned counsel Sri Tushar Gupta on behalf of respondent no.1-claimant of the claim petition argued that the award is of 16 years old but no fruits are reaped till now for the claim-petitioner who has sustained an irreparable loss by loosing his young son in the incident which occurred due to rash and negligent driving by the drivers of the vehicles namely bus and tractor. Both the vehicles are responsible and as such their insurers too are responsible to pay compensation because of their being under the contract of insurance coverage. He argued that insurer of the tractor, the appellant-National Insurance Company is liable to satisfy his part under the award, even in absence of any substantive policy of insurance. He also relied on the judgments of Hon'ble Supreme Court in the case of (Manager, National Insurance Company Limited Vs. Saju P. Paul & Anr.) reported in [(2013) 2 Supreme Court Cases 41] and in another case of (National Insurance Company Limited Vs. Parvathneni) reported in [(2009) 8 (SCC) 785], (National Insurance Company Limited Vs. Challa Upendra Rao) reported in [(2004) 8 SCC 517] and (National Insurance Company Limited Vs. Baljeet Kaur) reported in [(2004) 2 SCC (1)].

32. Learned counsel by citing the case of (National Insurance Company Ltd. Vs. Parvathneni) reported in [(2009) 8 SCC 785] argued that direction to the insurance company to pay compensation even though insurance company is not liable under law may be given with liberty to recover the amount from owner of vehicle. This is relevant to note that validity of such direction was doubted, propriety of such direction given in earlier case also doubted. Matter was then referred to a larger bench.

33. As argued by learned counsel for the claimant-respondent and on perusal of the case laws cited by him, passed by Hon'ble the Supreme Court of India, this would be material point to be considered that whether in absence of any contract of insurance, the insurer/appellant may be burdened with liability to first pay and then to recover under Section 149 (4) of the Act from the insured. A reading of the proviso of Sub-Section (4) as well as language employed in Sub-Section (5) would indicate that they are intended to safeguard the interest of an insurer, otherwise has no liability to pay any amount but for the provision contained in Chapter XI of the Act. This means, the insurer has to pay to the third party only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but also as an statutory obligation in case of any breach or violation of any condition specified in the contract, however, the insurer is entitled to recover any such sum from the insured if the insurer was not otherwise liable to pay such sum to the insured by virtue of the condition of the contract of insurance indicating by the policy. In other words, the effect of the aforesaid provision is that when an insurance policy validly issued in respect of a motor vehicle through a certificate of insurance, the burden is on the insurer to pay to the third parties, whether there has been any breach or violation of the policy conditions or not. He is further entitled to recover the amount from the insured if according to policy conditions the insurer had not liability to pay such amount to the insured.

34. In Parvathneni's Case (Supra) there was a situation of no insurance coverage for the vehicle on the date of accident and it was argued by insurance company that for this reason it is not liable to pay compensation. The High Court directed to pay compensation to the claimants with liberty to the insurance company to recover the same from the owner. Earlier an appeal having been filed against the decisions in (National Insurance Company Ltd Vs. Yellamma & Anr.) reported in [(2008) 7 SCC 527], (Samundra Devi Vs. Narendra Kaur) reported in [(2009) SCC 104] and some other cases, exercising the powers under Article 142 of the Constitution of India, The Supreme Court of India has directed the Insurance Companies to pay and recover it from the owner of the vehicle.

(ii) Can such a direction be given under Article 142 of the Constitution of India and what is the scope of Article 142? Does Article 142 permits the Court to create a liability whether there is none?

36. The judgment in Parvathneni's Case (Supra) is not similar to the other cases of no license but it was a case where there was no insurance coverage on the date of accident. The question referred by Hon'ble The Supreme Court is kept open by the Larger Bench vide its order dated 17.09.2013 in petition for Special Leave to Appeal (Civil) No.22444 of 2009 (The National Insurance Company Ltd. Vs. Parvathneni), Hon'ble the three judges bench disposed of the petition saying that the question of law raised in this petition are kept open to be decided in an appropriate case.