HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Misc. Appeal No. 213/ 2001

The Oriental Insurance Co Ltd., through Divisional Manager,

961, Residency Road, Jodhpur

----Appellant

Versus

1.

Smt. Deepa Devi widow of late Shri Bhiya Ram

2.

Narain Ram s/o Labhu Ram

3.

Smt. Sunder Devi w/o Narain Ram

All by caste Jat r/o village Gagani Tehsil Bhopalgarh District

Jodhpur

4.

Sheru Khan S/o Sultan Khan by caste Musalman r/o village

Gagani Tehsil Bhopalgarh District Jodhpur

5.

Gyan Chand Surana s/o Bhikam chand r/o Surana Ki Bari,

Nagaur.

----Respondents

_____________________________________________________

For Appellant(s) :

Mr. L.D. Khatri

For Respondent(s) :

None present

_____________________________________________________

HON'BLE MR. JUSTICE P.K. LOHRA

Order

05/06/2017

Appellant-Oriental Insurance Company Ltd. has preferred

this appeal, under Section 173 of the Motor Vehicles Act, 1988 (for

short, ‘Act’), to assail impugned judgment and award dated

06.12.2000 passed by Motor Accident Claims Tribunal (First),

Jodhpur (for short, ‘learned Tribunal’) in Claim Case

No.269/94(817/95).

The grievance of the appellant is limited to the extent

learned Tribunal has directed it to pay the amount of

compensation and then recover the same from the insured.

(2 of 4)

[CMA-213/2001]

It is submitted by learned counsel for the appellant that once

Tribunal has recorded its finding that insured has violated the

terms of the insurance and exonerated insurer from the liability,

learned Tribunal ought not to have directed the appellant to pay

amount of compensation and then recover the same from insured.

In support of his argument, learned counsel has placed reliance on

a very vital fact that in view of conflicting decisions of Supreme

Court, the matter has been referred to larger Bench and reference

is still pending.

I have given my thoughtful consideration to the arguments

advanced at Bar and perused the impugned judgment and award

as well as entire record of the case.

There remains no quarrel that appeal of the appellant-

Insurer is limited to the extent of challenging the direction issued

by the learned Tribunal to pay the amount of compensation and

then recover the same from insured, therefore, the said grievance

is required to be examined in the backdrop of law of precedents.

While it is true that reference on the issue is pending

consideration before the Larger Bench of Supreme Court but then

mere pendency of reference itself cannot obliterate the judgment,

which is holding the field, and merely on the strength of pendency

of reference direction issued by the learned Tribunal cannot be

faulted. Supreme Court, in case of Saju P. Paul Vs. National

Insurance Co. : 2012 ACJ 1852, has examined this issue and

held:

(3 of 4)

[CMA-213/2001]

“26. The pendency of consideration of the above

questions by a larger Bench does not mean that the

course that was followed in Baljit Kaur and Challa

Upendra Rao should not be followed, more so in a

peculiar fact situation of this case. In the present case,

the accident occurred in 1993. At that time, the claimant

was 28 years old. He is now about 48 years. The

claimant was a driver on heavy vehicle and due to the

accident he has been rendered permanently disabled.

He has not been able to get compensation so far due to

the stay order passed by this Court. He cannot be

compelled to struggle further for recovery of the amount.

The Insurance Company has already deposited the

entire awarded amount pursuant to the order of this

Court passed on 01-8-2011 [National Insurance Co. Ltd.

V. Saju P. Paul] and the said amount has been invested

in a fixed deposit account. Having regard to these

peculiar facts of the case in hand, we are satisfied that

the claimant (Respondent 1) may be allowed to withdraw

the amount deposited by the Insurance Company before

this