S.P. Srivastava, J.
1. The appellants-claimants had filed an application under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act', for short), for the award of compensation initiating the proceedings arising out of an accident involving a motor vehicle, a tractor bearing registration No. CPW 5418 wherein Chandrabhan Choubey had met his untimely death.
2. The Motor Accidents Claims Tribunal on consideration of the evidence and the materials brought on record by the various parties had determined that the present appellants, i.e., the wife and children of the deceased were entitled to an amount of Rs. 25,000 towards compensation on the basis of no fault liability from the owner-driver of the motor vehicle in question only; exonerating the insurance company on account of the violation of the terms and conditions of the insurance policy.
3. Accordingly, the aforesaid Tribunal granted an award of only Rs. 25,000 under Section 110-B of the Act, specifying that the said amount be paid by owner-driver of the offending motor vehicle, tractor on the basis of 'no fault liability' indicating that the said award was being given as contemplated under Section 140 of the Motor Vehicles Act, 1988. It was indicated further that claim of the claimants (present appellants) was rejected in its entirety as against the insurance company impleaded as the respondent No. 2.
4. Feeling aggrieved by the aforesaid award, the wife and the children of the deceased have filed the present appeal seeking enhancement of the amount of the compensation to the extent of Rs. 4,27,600 for which amount application under Section 110-A of the Act had been filed. It may be noticed that in the memo of appeal, the age of the eldest son of the deceased was shown to be 30 years and the age of the second son was shown to be 16 years and the age of the daughter of the deceased was shown to be 18 years.
5. During the pendency of the appeal, the appellants had moved an application being LA. No. 7626 of 1998 praying that the service of the notice on owner-driver of the offending motor vehicle, respondent No. 1, be dispensed with.
6. The aforesaid application was allowed by this Court vide the order dated 23.7.1998 and the service of the notices on the owner-driver, the respondent No. 1 was dispensed with.
7. Subsequently, however, another application being LA. No. 3574 of 2000, was filed. The appellants had prayed for the recall of the aforesaid order and for the grant of permission to serve the notices of the appeal on the respondent.
8. The aforesaid application was, however, dismissed by this Court vide the order dated 30.3.2001.
9. The net result, therefore, is that in this appeal filed under Section 110-D of the Motor Vehicles Act, 1939 (section 173 of the Motor Vehicles Act, 1988) wherein the claimants seek enhancement of the amount of compensation, only the insurer, the respondent No. 2 stands served with the notices of the appeal. The owner-driver of the offending motor vehicle on whom the liability had been fastened under the impugned award had not been served with the notices of the appeal. Obviously, the appellants seek enhancement of the amount awarded by the Tribunal without affording an opportunity of being heard to the owner-driver of the offending motor vehicle.
10. The learned Counsel for the insurer, in the circumstances as indicated above, has raised a preliminary objection in regard to the maintainability of this appeal asserting that the amount of the compensation under the law cannot be enhanced behind the back of the owner-driver of the offending motor vehicle.
11. Learned counsel for the appellants in opposition to the aforesaid preliminary objection has asserted that the liability fastened on the insurer is a statutory liability which taking into consideration the legislative intent underlying the relevant provisions of the Act, cannot be said to be dependent on the liability of the owner-insured or the driver of the offending motor vehicle and in that view of the matter even in the absence of the owner or driver of the offending motor vehicle, the question in regard to the enhancement of the amount of compensation could very well be gone into and the insurer is bound to discharge the enhanced liability, if so, determined.
12. In the aforesaid view of the matter, it is urged that the mere fact that owner-driver of the offending motor vehicle had not been served with the notices of the appeal is of no consequence so far as the question of enhancement of the amount of compensation is concerned. The appeal as it stands is maintainable and there is no impediment in the enhancement of the amount of compensation, as prayed for.
13. We have given our anxious consideration to the rival submissions made by the learned Counsel for the parties and have carefully perused the record.
14. It may be noticed that under the provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the old Act') as well as the Motor Vehicles Act, 1988 (hereinafter referred to as 'the new Act'), the use or the driving of a motor vehicle by any person in a public place is permissible only if there is in force in relation to the use of the vehicle by that person, a policy of insurance complying with the requirements of the Motor Vehicles Act. The policy of insurance further must be a policy which is issued by a person who is an authorised insurer and covers any liability incurred in respect of any accident up to the limit specified in Section 95 (2) of the old Act now retained in the new Act as Section 147(2) thereof. It had further been provided under Section 95 (5) of the old Act now retained in the new Act as Section 147(5) thereof that under such a policy notwithstanding anything contained in any law for the time being in force, the insurer issuing a policy of insurance as contemplated under the Act shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. The insurer is thus bound to pay to the person entitled to the amount which the insurer becomes liable to pay in respect of the liability incurred by the person insured even if it exceeds the amount for which the insurer would apart from the provision of this section shall be liable but then in that case the insurer is entitled to recover the excess from the insured as provided under Section 96 of the old Act now retained in the new Act as Section 149(5) thereof.
15. In its decision in the case of New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC), the Hon'ble Apex Court on a consideration of Sections 145 to 164 of the new Motor Vehicles Act, 1988 had observed that it was the duty of the insurer to satisfy the judgments and awards in respect of third party claims as provided under Section 149 of the Act, wherein it has been stipulated that the insurer shall pay to the person entitled to the benefit of a judgment or award as if the insurer were the judgment debtors in respect of the liability, when any such judgment or award is obtained against the insured in whose favour a certificate of insurance has been issued, indicating further that 'of course, the said liability of the insurer is subject to the maximum sum assured payable under the policy'.
16. Referring to Sub-sections (4) and (5) of Section 149 of the new Act which correspond to Section 96 (3) and (4) of the old Act, the Apex Court had clarified that these provisions would indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for the provisions contained in Chapter XI of the Act. It was also observed that 'this means, the insurer has to pay to the third parties only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy'.
17. Indicating the effect of the above provisions, it was pointed out by the Apex Court that when a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance, the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.
18. Referring to its earlier decision, it was clarified by the Apex Court that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the insurance company but to protect the members of the community who become sufferers on account of accidents arising from use of motor vehicles. Such a protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims or dependants of the victims of the accident. This was indicated to be raison d'etre for the legislature making it prohibitory for motor vehicles being used in public places without covering third party risks by a policy of insurance.
19. In para 25 of the aforesaid decision, the Apex Court had clearly indicated that the insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence.
20. As has already been noticed herein-above, the provision contained in Section 96 (4) of the old Act now retained in the new Act as Section 149(5) thereof clearly stipulates that if the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section shall be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
21. The question which therefore arises for consideration is as to whether any amount over and above the amount found to be payable by the insurer as a judgment-debtor under an 'award' of the Motor Accidents Claims Tribunal can be enhanced without any notice to the insured from whom the insurer has to recover the excess amount. In this connection, it may be noticed that when a liability is to be fastened on the insured to pay any amount to the insurer, he cannot be denied his say in the matter and contest the claim of enhancement to resist the additional burden which might be cast on him in regard to the payment of the excess amount to the insurer as the provision contained in the statute as has already been noticed hereinabove, clearly secures a benefit in favour of the insurer to get the amount recovered from the insured and casts a liability on the insured to pay the amount to the insurer.
22. We are clearly of the opinion that the insured cannot be saddled with any such liability behind his back and without affording him an opportunity of being heard as it is open to him to demonstrate that in fact no enhancement in the amount of compensation was either possible or permissible and it is also open to him to demonstrate that the award which had attained the finality as against him cannot be varied or modified to his detriment without affording an opportunity of being heard afforded in opposition to the claim in regard to the enhancement sought for.
23. It may be noticed that the provisions contained in Section 96 of the old Act now retained as Section 149 in the new Act are intended to enable the third parties who suffered on account of the user of the motor vehicle to get the damages/compensation which has not been made dependent on the financial condition of the driver of the offending motor vehicle or the contractual rights and obligations between the insurer and the insured.
24. It may further be noticed that the liability of the insurer to pay the compensation to the third parties in accordance with the provisions contained in Section 149 of the Act and the right of the third parties to recover the amount of compensation from the insurer flows from the statute.
25. The liability of the insurer to pay the compensation which has become due under an award given on the application under Section 166 of the Motor Vehicles Act, 1988 (section 110-A of the old Act) is in the capacity of a judgment-debtor which flows from the statute as there is no privity of contract between the insured and the third parties. The liability to this extent which stands cast upon the insurer and the right of the third parties to recover the compensation from the insurer clearly indicates that such liability is the statutory liability. However, this statutory liability is subject to the condition stipulated in Section 96 (4) of the old Act now retained as Section 149(5) in the new Act, which protects the interest of the insurer to the extent that if the amount which an insurer becomes liable to pay in respect of a liability incurred by person insured by a policy exceeds the amount for which the insurer would apart from the provisions of Section 96 of the old Act now retained as Section 149 in the new Act be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess amount from that person.
26. The statutory liability contemplated under Section 149(5) of the Motor Vehicles Act [corresponding to Section 96 (4) of the old Act] means and extends only to the making of the payment of the amount of award to the victim/claimant for which ultimate liability has been fastened on the owner. It, in its real meaning, is a statutory measure to provide a speedy relief to the claimant in the matter of recovery of the amount of award. In doing so, the insurer does not in any way indemnify the owner's liability inasmuch as that the amount so paid by the insurer is recoverable by it from the insured. The insurer does not stand exonerated of its liability to make the payment of award. The payment of the amount by the insured remains only deferred by the intervention of the insurer; in other words it is a stop-gap arrangement towards payment of the compensation amount fixing a statutory liability on the insurer in the interest of the claimant.
27. It may be noticed at this stage that in its decision in the case of Oriental Insurance Co. Ltd. v. Cheruvakkara Nafeessu 2001 ACJ 1 (SC), after examining various provisions of the Motor Vehicles Act, the Supreme Court had reiterated the position in law as indicated in its earlier decision in the case of New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 (SC), pointing out that 'the Act contemplates the possibility of the policy of insurance undertaking liability to third parties providing such a contract between the insurer and the insured, that is, the person who effected the policy, as would make the company entitled to recover the whole or part of the amount it has paid to the third party from the insured. The insurer thus acts as security for the third party with respect to its realising damages for the injuries suffered, but visa-vis the insured, the company does not undertake that liability or undertakes it to a limited extent'.
28. This court in its decision rendered by a Division Bench in the case of Nani Bai v. Ishaque Khan 1995 ACJ 292 (MP), had observed that the words 'unless there is in force in relation to the use of the vehicle of that person...a policy of insurance' clearly indicated that it is the vehicle that is required to be insured and not the person or the owner of the vehicle and in such a situation the insurance company cannot escape its liability. Drawing support from the observations made by the Apex Court in its decision in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), it was pointed out that the law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that compensation awarded by courts would be recoverable from the persons held liable for the consequences of the accident and it was clearly indicated that the insurance company is liable to pay compensation to the heirs of the deceased and to the injured in the accident if they are aggrieved by the concealment of fact or misrepresentation or fraud, if any, they can make a grievance before the appropriate forum separately.
29. It was further pointed out that in order to make the protection real the legislature had provided that the judgment obtained shall not be defeated by the incorporation of the exclusion clauses other than those specifically authorised and apart from the aforesaid exclusion clauses, it has been made obligatory on the insurance company to satisfy the judgment obtained against the person insured against third party risks.
30. It will be noticed that earlier the view expressed was that the provision for recovery of the amount of compensation from the person held liable for the consequences of the accident and the statutory liability in this respect being cast on the insurer was to provide a guarantee in respect of the payment of the compensation. However, this position stands amply clarified by the later decision of the Supreme Court wherein it has been indicated that the insurer acts as a security for the third party with respect to its realising damages for the injuries suffered but vis-a-vis the insured, the company does not undertake that liability or undertakes it to a limited extent.
31. Obviously, to protect the interest of insurer, provision had to be made enabling him to recover any amount paid in excess of the amount which was liable to be paid to the insured towards indemnifying him and the provision in Section 149(5) of the new Act [corresponding to Section 96 (4) of the old Act] was incorporated to achieve this object.
32. If the matter is viewed from this angle and that being the only view possible, we have no hesitation to hold that the status of the insurer in law so far as the statutory liability sought to be fastened upon him under the Act is concerned, it cannot be more than that of a guarantor and he acts as a security for the third party with respect to its realising damages for the injuries suffered but a right to get any amount paid in excess refunded to it by the insured stands secured. The ultimate burden always remains cast or fastened on the insured-owner of the motor vehicle.
33. There is yet another aspect of the matter. Where the liability stands cast upon the insurer to pay the third parties the amount due under the award, a statutory liability is also cast upon the insured to pay back to the insurer the amount so paid by the insurer to the third parties in all those cases where in fact on account of any breach of the conditions either no amount is required to be paid by the insurer or any amount in excess of the amount secured under the insurance policy had in fact been paid by the insurer to the third parties.
34. As has already been noticed herein-above, the compulsory insurance in the coverage of third party risks is provided to ensure the third parties to get the compensation in the event of an accident resulting in injuries even without reference to the financial condition of the driver or the owner of the motor vehicle.
35. The provisions contained in Section 147 of the new Act [corresponding to Section 95 of the old Act] enables the claimants to claim the amount of compensation from the insurance company after due notice to the company. In such an event, the liability which stands fastened on the insurance company even in the absence of any privity of contract between the claimant and the insurer has been made enforceable in law casting a statutory liability on the insurance company in that regard.
36. The expression 'against any liability which may be incurred by him' as used in Section 147 of the new Act [corresponding to Section 95 of the old Act] is clearly indicative of the fact that what is intended to be covered by the policy of insurance is the risk of a person who has incurred liability for the death or bodily injury or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The policy covering a third party risk, therefore, comes into play and is enforceable when it is proved that the insured had incurred the liability. This legal liability may be vicarious liability and the owner may be responsible for the negligent act of his driver or the owner-servant. In the circumstances, therefore, if the owner has not incurred any liability in respect of the death or bodily injury to any person or damage to the property of a third party, there is no liability which is intended to be covered by the insurance.
37. It is, therefore, obvious that the insurer cannot be held liable even under Section 149 of the new Act [corresponding to Section 96 of the old Act] where the insured himself stands exonerated of any such liability.
38. The statutory liability indicated hereinabove, therefore, has to be understood to be subject to the aforesaid condition. The statutory liability is thus, limited to the extent that the insured must have been proved to be under a liability first and the liability cast on him must be covered by the insurance policy. If the insured himself stands exonerated of any liability, the question of forcing the insurer to make payment whether within the limits of the insurance policy or in excess thereof even on the terms and conditions subject to which the policy had been issued in favour of the insured cannot be said to arise. This is so as the role of the insurer primarily is that of an indemnifier as has been indicated by this Court in its decision in the case of Sushila v. Rajveer Singh 2000 ACJ 719 (MP). Further as observed by the Supreme Court in its decision in the case of Oriental Insurance Co. Ltd. v. Sunita Rathi 1998 ACJ 121 (SC), the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance.
39. Further, if the liability of the insured is proved to be irrespective of the limit of the liability or even in the case of any breach of the conditions subject to which the policy had been issued, the liability of the insurer has been made enforceable protecting its right to recover the amount so paid to discharge the liability cast upon it, from the insured. In the circumstances, therefore, notice to the insured before enhancing the statutory liability whether cast under the terms and conditions of the policy or in excess of the amount secured thereunder or irrespective of the breach of the terms and conditions subject to which the insurance policy had been given to the insured is a matter where the insured ought to be afforded an opportunity of being heard as his interest is necessarily and bound to be affected adversely in case there is any enhancement of the amount of compensation which under the statutory provision becomes recoverable from the insured.
40. Learned counsel for the appellants has placed strong reliance in support of his submissions on the decision of the Apex Court in the case of A. Robert v. United India Insurance Co. Ltd. 2000 ACJ 252 (SC), on the strength of the observations made in the aforesaid decision it is urged that even if the appeal stands dismissed as against the owner yet since the liability cast upon the insurer is statutory liability the amount of compensation can be enhanced without affording any opportunity of hearing to the owner-insured. The contention is that it is not necessary to afford any hearing to the owner of the motor vehicle/insured while compensation which is payable by the insurer while discharging its statutory liability.
41. A perusal of the judgment in the case of A. Robert, 2000 ACJ 252 (SC), indicates that the claimant-appellant's appeal had been dismissed for want of prosecution as against the owner of the motor vehicle/insured. In the claim petition filed under Section 110-A of the Motor Vehicles Act, 1939, the claimants had prayed for the award of compensation of an amount of Rs. 2,83,000 as against the insured, driver of the motor vehicle as well as the insurance company. The Tribunal after hearing the parties had granted compensation of Rs. 99,000 only. The High Court had however, reduced the amount to Rs. 96,500. Hon'ble Supreme Court had observed that for the accidental injuries caused in that case, the insurance company's statutory liability under the 1939 Act was limited to Rs. 1,50,000 and since the insured was not a party-respondent before the Apex Court, the only question which survived for the consideration was as to whether the said statutory liability of the insurance company was required to be fully foisted on the sole respondent that is the insured. The Apex Court came to the conclusion that the claimants were entitled to an amount of Rs. 1,52,500 towards compensation but since the respondent, insurance company's statutory liability was confined to only Rs. 1,50,000 the award was confined to the amount of Rs. 1,50,000 which award was to include compensation already allowed on all remaining items of expenditure on nourishment, medical treatment, travelling expenses and for actual injuries and disablement suffered by the claimant providing further that the awarded amount was to bear 6 per cent per annum interest from the date of the claim petition till payment.
42. In the present case, the offending vehicle being tractor fell within the category of a goods vehicle as contemplated under Section 95 of the old Act. In the insurance policy issued by the insurer it had been indicated that the insurer was undertaking the liability only in respect of such amount as is necessary to meet the requirements or the Motor Vehicles Act, 1939 specifying the sum to be up to Rs. 50,000 only. It was further indicated that except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the insurer will not be liable in respect of the death of or bodily injury to any person in the employment of the insured arising out and in the course of such employment. In the insurance policy, it was also provided that the insured is not indemnified if the vehicle is used or driven otherwise than in accordance with the Schedule and any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Motor Vehicles Act, 1939 is recoverable from the insured.
42-A. It has been urged that even taking into consideration the limits of the liability as provided in the old Act, the impugned award was liable to be interfered with and even in the absence of the owner-insured, the amount of compensation could be enhanced, as prayed for, as the insurer on whom the statutory liability stands cast to pay the amount of compensation determined is bound to discharge that liability. It has further been urged that Section 96 of the old Act clearly provides that notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of that section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
43. The aforesaid submission overlooks the implications arising under the provisions of Section 96 (4) of the old Act now retained as Section 149(5) of the new Act which makes it obligatory on the owner of the vehicle/insured to refund the entire amount paid by the insurer in excess of the amount which could be said to be due under the policy of insurance. This submission further overlooks that the statutory liability of the insurer is of a very limited extent and in law it could not be higher than a security or a guarantee or a stopgap arrangement for ensuring the payment to the claimant/victim resting the ultimate liability on the owner-insured. The insurer had to act as a security for the payment of the amount awarded to the claimants with the corresponding right to recover the same from the insured in case either nothing could be said to be due to be paid by the insurer to the insured or any amount had been paid in excess of the amount which could be claimed to be due to be paid to indemnify the insured-owner of the motor vehicle. The decision in the case of .4. Robert, 2000 ACJ 252 (SC), was delivered on 27.8.1999. The decision of the Apex Court in the case of Oriental Insurance Co. Ltd., 2001 ACJ 1 (SC), was delivered on 14.12.2000 and the decision of Apex Court in the case of New India Assurance Co. Ltd., 2001 ACJ 843 (SC), was delivered on 27.3.2001. The earlier decisions of the Apex Court to which a reference has already been made hereinabove covering the subject had not been brought to the notice of the Bench in the case of A. Robert (supra).
44. In this connection, it may also be noticed that the Hon'ble Apex Court had observed in its decision in the case of State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139, as follows:
In practice per incuriam appears to mean per ignoratium, and the 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. The principle has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. It was clearly indicated that a decision passes sub silentio, in the technical sense that has come to be attached to that phrase when the particular point of law involved in the decision is not perceived by the court or present to its mind. The precedents sub silentio and without argument are of no moment. It was indicated that the courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. A decision is not binding because of its conclusions but in regard to its ratio and the principles, laid down therein. Any declaration or conclusion arrived without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.
45. In its another decision in the case of Amit Das v. State of Bihar AIR 2000 SC 2264, reiterating its earlier view it was observed that a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.
46. In its decision in the case of MM. Yaragatti v. Vasant AIR 1987 Karnataka 186, rendered by a Full Bench and in the case of Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxmanbhai AIR 1986 Gujarat 81 and in the case of Gopalkrishna Indley v. 5th Addl. District Judge, Kanpur AIR 1981 Allahabad 300, rendered by a Full Bench, it had been indicated that the latest judgment of Bench of the Supreme Court of the same strength has binding force. Further, it had been indicated by the Calcutta High Court in its decision in the case of Bholanath Karmakar v. Madanmohan Karmakar AIR 1988 Calcutta 1 and in the decision in the case of Boards & Boards Pvt. Ltd. v. Himalaya Paper (Machinery) Pvt. Ltd. AIR 1990 Rajasthan 120, that where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is not necessarily obliged to follow the later in point of time, but may follow the one which, according to it, is better in point of law.
47. It is, therefore, obvious that even where there is a direct conflict between the decisions of the co-equal Benches of Supreme Court, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act. Both the views of the Supreme Court cannot be binding on the courts below. In such a situation, a choice, however difficult it may be, has to be made. upon by the appellants cannot come to their rescue.
48. Considering the ratio of the Division Bench decision of this Court in the case of Sushila, 2000 ACJ 719 (MP) and the decision of the Apex Court in the case of Oriental Insurance Co. Ltd., 1998 ACJ 121 (SC), as well as in the case of Skandia Insurance Co. Ltd., 1987 ACJ 411 (SC), referred to hereinabove and considering the scheme of the new Act and identical provisions contained in the old Motor Vehicles Act, 1939 and further the implications arising under the observations made by the Supreme Court in its decision in the case of Skandia Insurance Co. Ltd. (supra), Oriental Insurance Co. Ltd. (supra) and New India Assurance Co. Ltd., 2001 ACJ 843 (SC), the decision in the case of A. Robert, 2000 ACJ 252 (SC), heavily relied
49. Taking into consideration the facts and circumstances and the implications arising under the various provisions of the Motor Vehicles Act, as discussed hereinbefore, we are clearly of the opinion that the preliminary objection in regard to the maintainability of the appeal is liable to be sustained.
50. In view of our conclusions indicated hereinabove, sustaining the preliminary objection, the appeal is dismissed as has having been rendered incompetent.
51. There shall, however, be no order as to costs.