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1982 Supreme(Bom) 78
IN THE HIGH COURT OF BOMBAY
Masodkar B.A. and Bharucha S.P. JJ.
Oriental Fire General Insurance Company Ltd.... Appellant.
Versus
Balkrishna Ramchandra Nayan and others.... Respondents.
F. A. No. 535 of 1979 decided on 4–3-1982.
Advocate Appears
For appellants-V. A. Gamaste with S. M. Mhamane.
For respondent No. 1 -A. P. Vaze.
For respondents 2 and 3-S. T. Tijoriwala instructed by Nalin Parekh and G. S. Bhat.
The tribunal has the power to issue a certificate under section 110E of the Motor Vehicles Act, 1939 to recover moneys due by one opposite party from another opposite party under an award.
Headnote:
MOTOR VEHICLES ACT, 1939 - SECTION 110E - AWARD - APPORTIONMENT OF LIABILITY - RECOVERY OF EXCESS AMOUNT - POWER OF TRIBUNAL - SECTION 110B - SECTION 110D - SECTION 110F - SECTION 111A - BOMBAY MOTOR VEHICLES RULES, RULE 294 - CODE OF CIVIL PROCEDURE, 1908 - SECTION 144 - INTERPRETATION.
Fact of the Case:
An accident occurred involving a vehicle owned by the respondents. Dr. Balkrishna Nayan (respondent 1) was injured in the accident and filed an application before the tribunal for compensation. The appellants, insurers of the vehicle, were joined as parties. The tribunal made an award directing the respondents 2 and 3 and the appellants to pay compensation to Dr. Nayan. The appellants appealed the award, and the High Court dismissed the appeal but granted liberty to the appellants to apply to the tribunal for not issuing a certificate against the insurance company under section 110E for the balance of the amount awarded on the ground that the liability of the insurance company was limited to Rs. 20,000. The Supreme Court dismissed the appeal filed by the respondents. The appellants paid the entire amount due under the award. The appellants then filed an application before the tribunal to apportion the liability under the award between themselves and the respondents 2 and 3. The tribunal held that it did not have the power to issue a certificate of recovery in respect of moneys payable by the owner of a vehicle to its insurer and rejected the application.
Finding of the Court:
The High Court held that the tribunal was obliged to determine the liability of the appellants and to employ the provisions of section 110E to recover the excess amount paid by the appellants under the award from the respondents 2 and 3. The court found that the tribunal had the power to issue a certificate under section 110E to recover moneys due by one opposite party from another opposite party and that the apportionment of liability between the insurer, owner, and driver of the vehicle involved in the accident was a function of the tribunal and a part of the award. The court also held that the jurisdiction of the civil courts was barred in respect of any question relating to any claim for compensation which may be adjudicated upon by the claims tribunal.
Issues: 1. Whether the tribunal had the power to issue a certificate under section 110E to recover moneys due by one opposite party from another opposite party. 2. Whether the apportionment of liability between the insurer, owner, and driver of the vehicle involved in the accident was a function of the tribunal and a part of the award. 3. Whether the jurisdiction of the civil courts was barred in respect of any question relating to any claim for compensation which may be adjudicated upon by the claims tribunal.
Ratio Decidendi: 1. Section 110E of the Motor Vehicles Act, 1939 empowers the Claims Tribunal to issue a certificate for the amount due under an award to the Collector, who shall proceed to recover the same in the same manner as an arrear of land revenue. 2. The tribunal is required in making the award to specify the amount to be paid thereunder by the insurer, the owner, and the driver of the vehicle involved. Apportionment of liability between them is a function of the tribunal and the apportionment is a part of the award. 3. Section 110F of the Act bars the jurisdiction of the civil courts in respect of any question relating to any claim for compensation which may be adjudicated upon by the claims tribunal.
Final Decision: The appeal was allowed. The order of the Motor Claims Tribunal dated 20th February 1979 was set aside. The Tribunal was directed to issue a certificate under section 110E certifying that the sum of Rs. 1,88,125 with interest thereon at the rate of 6% per annum from the date of the order till payment is recoverable by the appellants from the respondents 2 and 3.
2. On 14th April 1969 an accident took place at Bombay involving a vehicle owned by the respondents. One Dr. Balkrishna Nayan (respondent 1) was injured in the accident. He filed before the tribunal Application No. 727 of 1969 against the respondents 2 and 3 for compensation. The appellants were joined as insurers of the vehicle. On 12th December 1974 the tribunal made an award directing the respondents 2 and 3 and the appellants to pay to Dr. Nayan the sum of Rs. 1,43,400 with interest thereon at the rate of 6% per annum from the date of the filing of the claim till payment and costs in the sum of Rs. 1,000. Against the award an appeal was filed in this Court (being First Appeal No. 449 of 1975) by The respondents 2 and 3 and the appellants. On 23rd March 1976 the appeal was dismissed. The Court then passed, inter-alia, the following orders :-
“(2) The award passed by the tribunal is confirmed but the appel-lant-insurance company is given liberty to apply on depositing Rs. 20,000 with interest as ordered in the award from the date of the application to the date of the deposit, for not issuing a certificate, against the insurance company under section 110E for the balance of the amount awarded on the ground that the liability of the insurance company is limited to Rs. 20,000 under section 95(2) or the amount for which the insurance company has issued the policy, whichever is higher.
(3) The tribunal to decide the question of the liability of the insurance company on its application for the said purpose under sec-tion 110E after giving an opportunity to all the parties.”
The matter was carried in appeal to the Supreme Court by the respondents. On 26th January 1972 the Supreme Court dismissed the appeal. Dr. Nayan then filed before the Supreme Court Civil Miscellaneous Petition No. 1347 of 1978 in the appeal. In that petition the Supreme Court on 3rd February 1979 passed the following order; -
“Heard learned counsel for all the three parties, namely the claimant, the insurers, as also the insured. In our opinion, reading the judgment of the High Court and of this Court passed in appeal as well as in the review matter, it is clear that the award made by the Tribunal for the amount of about Rs. one lakh and forty thousand casting a joint and several liability on the insured and the insurers has remained intact. It has not been affected in any way by any direction given by the High Court as affirmed by this Court. In other words, it isopen to the claimant to claim the whole of that amount from the insurer or the insured in accordance with the Motor Vehicles Act, 1939.
The Tribunal, however, as directed by the High Court, and the said direction having not been interfered with by this Court, may proceed to determine the liability of the insurer, if the insurance company has carried out the condition for determination of that liability, namely deposit of Rs. 20,000 with interest. But it is made clear that the deter-mination of this liability will be only for the purpose of apportioning the liability between the insured and the insurer as between themselves. It will not affect the joint and several award made against them in favour of the claimant and will not affect or delay his right at all for the realisa-tion of the amount. If the insurer is made to pay an amount in excess of the amount of liability determined by the Tribunal in pursuance of the direction of the High Court it will be open to the insurer to proceed against the insured in accordance with law for reimbursement of the said amount. We, therefore, dire
