KISTAPPA Vs. ORIENTAL INSURANCE CO. LTD.

JUDGEMENT

(1.) THE claimants are the parents of the deceased minor Kaveri. She was aged 13 years on the date of the accident. On 26 -3 -2008 at about 5.00 p.m. at Gabbur village when she was returning from School in an Auto bearing No. KA -36/5375 the driver of the vehicle drove the same in high speed and the deceased sitting in the auto fell down and sustained grievous injuries and died on the spot. Hence, the parents filed the claim petition under Section 166 of the Motor Vehicles Act. By the impugned order, the Tribunal held that the deceased being seated along with the driver of the three wheeler, the insurer cannot be held liable to satisfy the award. Hence, the liability on the insurer was absolved and the owner was held liable to satisfy the award. Seeking enhancement and questioning such a liability, the claimants have filed this appeal.

(2.) THE learned Counsel appearing for the appellants contends that the impugned order is bad in law and liable to be set aside He contends that the liability imposed on the owner is inappropriate. That the insurer should be held liable to satisfy the award. It is further contended that the claimants being coolies are not in a position to recover the same from the owner. Therefore the insurer be directed to satisfy the claim which could be recovered from the owner thereafter.

(3.) I have heard learned counsels on liability. The Hon'ble Supreme Court in the aforesaid Judgment, that is UNITED INDIA INSURANCE COMPANY LIMITED vs. SURESH K.K. & ANOTHER reported in : (2008) 12 SCC 657 held to the effect that in a case where the driver could not have allowed anyone to share his seat, having done so, the same would amount to violation of the conditions of contract making the owner liable. On facts there is no dispute by the claimants. Admittedly, the deceased was travelling along with the driver of the vehicle. Therefore the contention against liability is liable to be rejected. It is the owner who is liable to satisfy the award, in view of the fact that the deceased was seated next to the driver of the three wheeler. In para -11 of the Judgment the Hon'ble Supreme Court have considered the fact whether the claimant being a coolie would he be in a position to realise the dues from the owner of the vehicle? In so answering the question framed, the Hon'ble Supreme Court held that the claimant being a coolie would not be in a position to realise the dues. Therefore, the insured therein was directed to pay the amount to the claimant and thereafter realise the same from the owner of the vehicle in the larger interest of justice. To this, the learned Counsel appearing for the respondent No. 1 submits that the Judgment of the learned Single Judge requires to be accepted. He places reliance on the Judgment in the case of ORIENTAL INSURANCE COMPANY LTD. vs. DRAKSHAYANAMMA AND ANOTHER reported in : 2011 ACJ 2589 wherein the learned Single Judge held that the direction issued by the Hon'ble Supreme Court under Article 142 of the Constitution cannot be exercised by the Tribunal or even by the High Court. Therefore he contends that this Court has no jurisdiction to exercise powers under Article 142. I am afraid that it is neither the contention raised, canvassed, or pleaded by the other side. This is not a question of exercise of jurisdiction under Article 142 of the Constitution of India by this Court. What was being contended based on the aforesaid Judgment is that the Supreme Court having raised the question whether the coolies would be in a position to recover the compensation, held so in the negative and directed the appellant -insurer to satisfy the award. The Judgment of the learned Single Judge relied upon by the insurer is with reference to para -16. The reference is to the Judgment of Hon'ble Supreme Court in the case of Daddappa vs. Branch Manager, National Insurance Company Ltd., reported in : 2008 ACJ 581. In para -28 specific reliance was made to the exercise of the extraordinary jurisdiction under Article 142 of the Constitution. Therefore, Article 142 of the Constitution being exercisable only by the Supreme Court of India, the same cannot be applied as a precedent. So far as the Judgment relied upon by the insurer in the case of UNITED INDIA INSURANCE COMPANY LIMITED vs. SURESH K.K. & ANOTHER reported in : (2008) 12 SCC 657 is concerned, there is no exercise of power under Article 142 of the Constitution as per the law laid down in para -11 & 12. In terms of para 11 & 12 the question so answered by the Hon'ble Supreme Court was as to whether the coolie could recover the compensation from the owner. It is to this question that the Supreme Court have so answered. It is not an order under Article 142. However, the order has been passed in order to serve the ends of justice. Therefore, I am of the considered view that the question being answered by the Hon'ble Supreme Court, the principle as enunciated requires to be followed by this Court. Therefore in order to meet the ends of justice it is also necessary that the insurer be directed to pay the amount and thereafter to recover from the owner. Under these circumstances, the reliance placed by the insurer on the order of the learned Single Judge is wholly misplaced. I fail to understand how the insurer could contend that the order of the learned Single Judge of the High Court would have precedence over the Judgment of the Hon'ble Supreme court. Therefore, keeping in mind that ultimately the ends of justice have to be served it is only just and appropriate that while upholding the finding of the Tribunal so far as hoisting the liability on the owner is concerned, the insurer respondent no. 1 is hereby directed to settle the amount awarded and thereafter to recover the same from the owner. No other Judgments are brought to the notice of this Court by the insurer.