K.S. Jhaveri, J.
1. By way of this petition, the petitioners have prayed for following reliefs:
(a) Your Lordships be pleased to issue the writ of mandamus or any other appropriate writ and be pleased to quash and set aside the impugned order dated 7th July, 2005 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar below Exts. 4/32 and 36 in M.A.C.P. No. 337 of 2003 and further be pleased to disburse appropriate amount in favour of the petitioners in the interest of justice.
(b) Your Lordships be pleased to direct the Tribunal to pay appropriate amount to the petitioners out of the deposited amount of compensation during the pendency, notice, hearing and final disposal of the present petition in the interest of justice.
2. The brief facts of the case are that the deceased met with an accident on 9th April, 2003 that occurred between Sathra and Valavav villages of Mahuva Taluka of Bhavnagar district. According to the petitioner-claimants, the deceased was the only breadwinner for the family and was earning about Rs. 4,000 to Rs. 5,000 per month. The appellants had, thereafter, preferred a claim petition being M.A.C.P. No. 337 of 2003 before the Motor Accident Claims Tribunal, Bhavnagar claiming compensation of an amount of Rs. 4,64,000.
2.1. The Tribunal, partly allowed the said claim petition and passed an award of Rs. 3,55,100 with interest at the rate of 9 per cent per annum from the date of application till its realisation. 2.2. According to the petitioners, pursuant to the aforesaid order, the respondent No. 3 Insurance Company deposited an amount of Rs. 4,25,058 including interest at the rate of 9 per cent. The petitioners, thereafter, made an application dated 30th March, 2005 for disbursement of the same. However, the same has not been entertained on objection being raised by the Advocate for the Insurance Company that the said amount may be disbursed only after the owner of the offending vehicle first deposits the amount in question with the Tribunal. Hence, this petition.
3. Learned Advocate for the petitioners has submitted that respondent No. 3-Insurance Company is liable to satisfy the award at the first instance and, thereafter, recover the same from the owner of the offending vehicle. Therefore, it is not open to the respondent Insurance Company to take a ground that only after the amount in question is deposited by the owner of the offending vehicle, the amount of claim may be disbursed.
3.1. Learned Counsel for the petitioners has relied upon a decision of the Apex Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma and Ors. and, more
particularly, on the observations made in para 13, which reads as under:
13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as part of the security. If necessity arises the Executing Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e., the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.
3.2. Learned Advocate has next relied upon a decision in the case of National Insurance Co. Ltd. v. Baljit Kaur and Ors. and, more particularly, the observations made in para 21 of the said decision which read as under:
21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh . The said decision has been overruled only in Asha Rani, . We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the Executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident in as much as can be resolved by the Tribunal in such a proceeding.
3.3. He has also placed reliance on a decision of the Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. and, more particularly, the observations made in paras 99 and 100 which read as under:
99. It is, therefore, evident from the discussions made hereinbefore that the liability of the Insurance Company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time.
100. Apart from the reasons stated herein before the doctrine of stare decisis persuades us not to deviate from the said principle.
3.4. Learned Counsel for the petitioners has, therefore, submitted that the impugned order passed by the Tribunal below Exts. 4/32 and 36 is contrary to the settled principle of law, and therefore, the same requires to be quashed and set aside.
4. On the other hand learned Advocate for the respondent No. 3-Insurance Company has submitted that the Tribunal has passed the impugned award after taking into consideration all the facts and circumstances of the case, and therefore, no case is made out calling interference of this Court.
5. Heard learned Counsel for the parties and perused the documents placed on record. From the documents placed on record, there is nothing to doubt that the deceased died due to injuries sustained by him otherwise, than by the said vehicular accident.
6. The issue involved in this appeal is covered by a recent decision of the Apex Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma and Ors. (supra). In that case, three persons were travelling in an auto rickshaw which met with an accident. On account of the said accident, two persons lost their lives while one was seriously injured. Claim petitions were filed by the legal representatives of the two deceased persons while the injured filed a separate petition claiming compensation. The Insurance Company resisted the claim on the ground that the insured had not obtained permit to ply the vehicle and, therefore, in terms of the policy of insurance, the Insurer had no liability.
6.1. The Hon'ble Apex Court held that though in law the Insurance Company has no liability, it would be proper for the Insurance Company to first satisfy the award and then to recover the amount from the insured by initiating execution proceedings. It was further held therein that for that purpose the Insurance Company was not required to file any suit.
7. In the present case, the petitioners/claimants being third parties, the respondent-Insurance Company is liable to satisfy the award at the first instance. After satisfying the award, the respondent Company can recover the awarded amount from the driver and the owner of the vehicle. The respondent Insurance Company is not required to file any suit for recovering the amount paid from the owner, but, it can initiate a proceeding before the Executing Court concerned as if the dispute between the Insurance Company and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the Insurance Company. Hence, the impugned award passed by the Tribunal is unjust and improper.
8. In the result, the petition is allowed. The order below Exts. 4/32 and 36 passed in M.A.C.P. No. 337 of 2003 dated 7th July, 2005 is quashed and set aside and the order of the Tribunal passed below Ext. 1 in the main claim petition dated 29th September, 2004 is confirmed. Rule is made absolute with no order as to costs.