Judgment:
Arun Mishra, J.
1. The owner has preferred an appeal aggrieved by an award dated 5.4.2004 passed by the Additional Motor Accidents Claims Tribunal, Umaria in Claim Case No. 28 of 2003. The learned Claims Tribunal has awarded compensation of Rs. 1,87,000 on account of death of Bhola Das to the widow and children of the deceased who died in an accident dated 17.4.2003.
2. The factum of accident, question of negligence and quantum of compensation has not been assailed in this appeal by the learned Counsel appearing on behalf of the appellant. However, he has assailed the compensation and submitted that insurer ought to have been saddled with the responsibility to make the payment of compensation.
3. Mr. R.K. Tiwari, the learned Counsel appearing on behalf of the appellant has submitted that vehicle was insured. It was not clearly stated in the claim petition that fare was paid, at which place fare was paid has not come on the record. The Claims Tribunal has erred in law in relying on the statement of witnesses examined by the claimants. Thus, the insurer be saddled with the liability to make the payment of compensation.
4. Mr. Rajroop Patel, learned Counsel appearing on behalf of insurer, respondent No. 6, has submitted that no case for interference is made out in this case as it has come in the statement of Soni Lal, CW 2 and Shyam Lal, CW 3, that fare of Rs. 500 was fixed to be paid to the owner. Jeep was plied on hire at the time of incident. Insurer has rightly been exonerated.
5. After going through the statement of Soni Lal and Shyam Lal, it is clear that the jeep was on hire at the time of the accident. Fare of Rs. 500 was fixed. Jeep was admittedly insured for private use. It could not have been plied on hire. Thus, it is clear that there is violation of terms and conditions of the insurance policy. Hence, the insurer cannot be said to be liable. However, the Supreme Court in Pramod Kumar Agrawal v. Mushtari Begum, : AIR2004SC4360 , has held that even if the insurer is not liable in such circumstances, it is open to the claimants to claim the compensation from insurer and insurer will recover from the owner. The Apex Court has held that:
(12) Therefore, while upholding the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case, : AIR2004SC1340 , that the insurer shall pay the quantum of compensation fixed by the Claims Tribunal, about which there was no dispute raised, to respondents-claimants within 3 months from today. For the purpose of recovering the same from the owner the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned 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. Before release of the amount to the claimants, owner of the vehicle, i.e., appellant No. 1 shall furnish security for the entire amount which the insurer will pay to claimants. The offending vehicle shall be attached, as a part of the security. If the necessity arises the executing court shall also take assistance of the concerned Regional Transport Authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle, i.e., appellant No. 1 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, the insured (the appellant No. 1).
6. In view of the aforesaid discussion, it is held that insurer is not liable, however, it would be open to the claimants to recover the compensation from the insurer and the insurer in turn, shall recover the amount from the owner.
7. Appeal is disposed of. Consequently, M.C.C. No. 2162 of 2004 stands disposed of. No costs.