MACA Nos. 751/2023, 675/2023, 685/2023, 726/2023, 776/2023: M/S Shriram General Insurance Company Ltd. v. Us ha and Others (Original Petitioners)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 ``` ``` MACA NO. 751 OF 2023 ``` ``` AGAINST THE ORDER DATED 05.12.2022 IN OPMV 393/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA ``` ## **`APPELLANT:`** ``` M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., 41/339 AZAD TOWER. AMMAN KOVIL CROSS ROAD, KOCHI, PIN – 682 018REPRESENTED BY ITS LEGAL OFFICER ``` ``` BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY ``` ``` RESPONDENTS/ADDITIONAL PETITIONERS 2 TO 5 AND RESPONDENT NO.1 IN ``` ``` THE ORIGINAL PETITION: ``` - **`1 USHA, W/O (LATE) JOHN, AGED ABOUT 57 YEARS, ANIYIL, THEKKUMKARA PUTHEN VEEDU, PALAIKONAM, ARYANAD P.O, THIRUVANANTHAPURAM, PIN - 695542`** - **`2 KRISHNA KUMAR, S/O (LATE) JOHN, AGED ABOUT 32 YEARS, ANIYIL, THEKKUMKARA PUTHEN VEEDU, PALAIKONAM, ARYANAD P.O, THIRUVANANTHAPURAM, PIN - 695542`** - **`3 KRISHNA KUMARI, D/O (LATE) JOHN, AGED ABOUT 30 YEARS, ANIYIL, THEKKUMKARA PUTHEN VEEDU, PALAIKONAM, ARYANAD P.O, THIRUVANANTHAPURAM, PIN - 695542`** - **`4 AMMU, D/O APPU, AGED ABOUT 83 YEARS, PERINJARAMOOLA PUTHEN VEEDU, KANNAMPALLY, VELLANAD P.O, VELLANAD, THIRUVANANTHAPURAM, PIN - 695543`** - **`5 SUNIL, S/O THANKAYYAN, LIJO BHAVAN, VATTAKARIKAKOM, KOTTOOR, KOTTOOR P.O THIRUVANANTHAPURAM, PIN – 695121`** ## **`BY ADV R.T.PRADEEP`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 17.08.2023, ALONG WITH MACA.675/2023, 685/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 MACA NO. 675 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 410/2015 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL ,NEYYATTINKARA ``` ## **`APPELLANT/2ND RESPONDENT IN THE ORIGINAL PETITION:`** ``` M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI, REPRESENTED BY ITS LEGAL OFFICER, PIN - 682018 BY ADVS. ``` ``` JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY ``` ## **`RESPONDENTS/PETITIONERS/1ST RESPONDENT IN THE ORIGINAL PETITION:`** - **`1 JAYAKUMAR, AGED ABOUT 59 YEARS, S/O SREEDHARA PANIKKAR, AMBUJA VILASAM, VELLAIKADU,KIZHAKKUMKARA VEEDU, PALEKONAM, ARYANADU P.O, THIRUVANANTHAPURAM, PIN - 695542`** - **`2 SUNIL, S/O THANKAYYAN, LIJO BHAVAN, VATTAKARIKAKOM, KOTTOOR, KOTTOOR P.O THIRUVANANTHAPURAM, PIN - 695121`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2023, ALONG WITH MACA.751/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 ``` ``` MACA NO. 685 OF 2023 ``` ``` AGAINST THE AWARD IN OPMV NO.394/2015 DATED 05.12.2022 OF MOTOR ``` ``` ACCIDENTS CLAIM TRIBUNAL ,NEYYATTINKARA ``` ## **`APPELLANT/2ND RESPONDENT IN THE ORIGINAL PETITION:`** ``` M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI, PIN 682018 REPRESENTED BY ITS LEGAL OFFICER ``` ``` BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY ``` ## **`RESPONDENTS/PETITIONERS 1 TO 4 & RESPONDENT No.1 IN THE ORIGINAL`** ``` PETITION : ``` - **`1 LEKHA. V, AGED 45 YEARS, W/O LATE SUDARSANAN, ROADARIKATHU PUTHEN VEEDU, PALEKONAM, ARYANADU ARYANAD PO, THIRUVANANTHAPURAM PIN: 695 542 (PLAVIA VEEDU, KOTTOOR, KUTTICHAL, KUTTICHAL PO THIRUVANANTHAURAM, PIN - 695574`** - **`2 ADITHYA SUDARSANAN (MINOR), AGED 14 YEARS, REPRESENTED BY HER MOTHER LEKHA. V, ROADARIKATHU PUTHEN VEEDU, PALEKONAM, ARYANADU ARYANAD PO, THIRUVANANTHAPURAM PIN: 695 542 (PLAVIA VEEDU, KOTTOOR, KUTTICHAL, KUTTICHAL PO, THIRUVANANTHAURAM, PIN - 695574`** - **`3 ADARSH (MINOR), AGED 11 YEARS, REPRESENTED BY HER MOTHER LEKHA. V, ROADARIKATHU PUTHEN VEEDU, PALEKONAM, ARYANADU ARYANAD PO, THIRUVANANTHAPURAM PIN: 695 542 (PLAVIA VEEDU, KOTTOOR, KUTTICHAL, KUTTICHAL PO THIRUVANANTHAURAM, PIN - 695574`** - **`4 SAROJINI, AGED ABOUT 79 YEARS, W/O SUKUMARAN ROADARIKATHU PUTHEN VEEDU, PALEKONAM, ARYANADU, ARYANAD PO,`** ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 4 ``` ``` THIRUVANANTHAPURAM PIN: 695 542 (PLAVIA VEEDU, KOTTOOR, KUTTICHAL, KUTTICHAL PO THIRUVANANTHAURAM, PIN - 695574 ``` ``` 5SUNIL S/O THANKAYYAN, LIJO BHAVAN, VATTAKARIKAKOM, KOTTOOR, KOTTOOR P.O THIRUVANANTHAPURAM, PIN – 695121 ``` ## **`BY ADV R.T.PRADEEP`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2023, ALONG WITH MACA.751/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 5 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 MACA NO. 726 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 395/2015 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, NEYYATTINKARA ``` ## **`APPELLANT/2ND RESPONDENT IN THE ORIGINAL PETITION:`** ``` M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI, PIN – 682018 REPRESENTED BY ITS LEGAL OFFICER, ``` ``` BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY ``` ## **`RESPONDENTS/PETITIONER/1ST RESPONDENT IN THE ORIGINAL PETITION:`** - **`1 MANU, AGED 39 YEARS, S/O CHANDRAN PILLAI, MARUTHUMMOODU VEEDU, KUTTICHAL, KUTTICHAL P.O, THIRUVANANTHAPURAM, PIN - 695574`** - **`2 SUNIL S/O THANKAYYAN, LIJO BHAVAN, VATTAKARIKAKOM, KOTTOOR, KOTTOOR P.O THIRUVANANTHAPURAM, PIN – 695121`** ``` BY ADV R.T.PRADEEP ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2023, ALONG WITH MACA.751/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 6 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 MACA NO. 776 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 411/2015 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, NEYYATTINKARA ``` ## **`APPELLANT/2ND RESPONDENT IN THE ORIGINAL PETITION:`** ``` M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI REPRESENTED BY ITS LEGAL OFFICER, PIN - 682018 BY ADVS. ``` ``` JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY ``` ## **`RESPONDENTS/PETITIONERS/1ST RESPONDENT IN THE ORIGINAL PETITION:`** - **`1 BIJU, AGED 42 YEARS, S/O RAVEENDRAN BINU BHAVAN, KOKKOTTELA,ARAYAND ARYANADU P.O, THIRUVANANTHAPURAM, PIN - 695542`** - **`2 SUNIL`** ``` S/O THANKAYYAN, LIJO BHAVAN, VATTAKARIKAKOM, KOTTOOR, KOTTOOR P.O, THIRUVANANTHAPURAM, PIN – 695121 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2023, ALONG WITH MACA.751/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 7 ``` ## **`JUDGMENT`** ``` The question raised by the appellant/insurance company in all these appeals is pertaining to the liability of the insurance company to indemnify the owner of the vehicle in the matter of injury or death of passenger in a goods carriage. The Tribunal fastened initial liability on the insurance company/appellant with right to recover the same from the owner of the vehicle. It is submitted by the learned counsel for the appellant/insurance company that what is involved in the alleged accident is a goods carriage truck. It was carrying 12 gratuitous passengers on its platform. The vehicle ultimately capsized and fell down, resulting in the death of one person at the spot, one succumbed to the injuries subsequently and others sustained injuries. There is no dispute that the vehicle involved in the accident is a goods vehicle not intended for carrying passengers except the person recognized under Section 147 the Motor Vehicles Act., ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 8 ``` ``` 1988, ie., the owner or the authorized representative of owner of the goods, if any, carried in the vehicle. Now the liability fastened against the Insurance Company is to pay the entire amount of compensation and to recover the same from the owner, on the ground that the persons carried in the vehicle will not come under the expression “gratuitous passengers”. Secondly on the ground that the driver was not having valid driving licence as on the date of alleged accident. ``` ``` 2.The learned counsel appearing for the appellant and the respondents made extensive arguments on the point by referring to various decisions rendered by the Apex Court in (1) Manager, National Insurance Company Limited v. Saju P. Paul and Another [(2013) 2 SCC 41] (2) Manuara Khatun and Others v. Rajesh Kumar Singh and Others [(2017) 4 SCC 796](3) New India Assurance Co. Ltd. v. Asha Rani (2003 KHC 22)(4) Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy (2003 KHC 97) and (5) Balu Krishna Chavan v. The Reliance General Insurance Company Ltd. & Ors (2022 Live Law (SC) 932) and also this Court in The United ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 9 ``` ``` India Insurance Co. Ltd. v. Rijawana Jamshed Mulla and Ors. (MANU/KE/2223/2020 = ILR 2020(4)Kerala 34). In fact what is considered by the Apex Court inSaju P.Paul and Manuara Khatun’s case(supra)is pertaining to the ultimate liability on the Insurance Company based on the insurance policy and not pertaining to the initial liability that can be fastened. There is a lot of difference between the ultimate liability that can be fastened against the insurance company under the coverage of a valid policy from that of an initial liability to pay and recover. ``` ``` 3.The question of gratuitous passenger and liability that can be fastened against the insurance company is the subject of several decisions based on the provisions contained in the Motor Vehicles Act, 1988 as it stood prior to the amendment of 1994. The provision, Section 147(1)(b)(i) r/w proviso (i) to Section 147(1) as stood prior to the amendment of 1994 regarding the liability that can be cast upon the insurance company on account of any injury or death of a “Gratuitous Passenger” was elaborately considered by ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 10 ``` ``` the Apex Court inSaju P.Paul's case (supra) by referring to the provisions as it stood prior to the amendment of 1994 and also in reference to the provision after the amendment. It is a case wherein a compensation of Rs.2,88,000/- with interest was awarded by the Motor Accident Claims Tribunal by fastening liability on the insurance company. It is pertaining to an accident happened prior to the amendment of 1994 to Section 147 of the Act. In appeal, the Division Bench of this Court by relying on the decision rendered in Asha Rani's case (supra) and inNational Insurance Company Ltd.v. Cholleti Bharatamma [(2008) 1 SCC 423] allowed the appeal by holding that the insurer is not liable to compensate a gratuitous passenger travelling in a goods vehicle. But on submission of a review application by the claimant, the Division Bench of this Court reviewed its earlier judgment by interpreting Section 147(1)(b) (i) of the Act (as it stood prior to the amendment of 1994) and found that a spare driver engaged in the vehicle in the course of his employment cannot be ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 11 ``` ``` brought under the purview of gratuitous passenger. It is further found by the Division Bench that “even otherwise, the first proviso to Section 147(1) will cast a liability on the insurer to indemnify the owner in respect of the injury sustained by the employee of the insured arising out of and in the course of his employment”. It is against that judgment, the insurance company came up before the Apex Court [Saju P.Paul's case (supra)], wherein the law on the issue was elaborately considered with the relevant provisions as it stood prior to the commencement of Amendment Act of 1994 (the accident happened on 16/09/1993), wherein the Apex Court had taken note of the legal position laid down by a larger Bench in Asha Rani's case (supra) and concurred with the legal position, by which, the earlier decision on the point inNew India Assurance Company v. Satpal Singh [(2000)1 SCC 237] was found not the correct law. Asha Rani's case has been relied upon inDevireddy Konda Reddy's case (supra), wherein it was held that : ``` ``` “9....... The difference in the language of 'goods vehicle' as appearing in the old Act and ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 12 ``` ``` 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in the definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 94 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'the WC Act'). There is no reference to any passengers in 'goods carriage'. ``` ``` 4.It is by virtue of Motor Vehicles Amendment Act, 1994 (for short, the Amendment Act of 1994), the expression “including owner of the goods or his authorised representative carried in the vehicle” was incorporated in Section 147 of the Act. It is also found by the Apex Court in that decision that since the accident occurred prior to the commencement of Amendment Act of 1994, the parties will stand governed by the unamended Act of 1988 (as it stood before the ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 13 ``` ``` amendment), hence has to be distinguished as applicable to the accident, which has occurred prior to the commencement of the Amendment Act of 1994. ``` ``` 5.The impact of Amendment Act of 1994 by the incorporation of expression “including owner of the goods or his authorised representative carried in the vehicle” is to exclude those persons from the purview of gratuitous passenger and to extend liability under the coverage of policy. Section 147 of the Act is intended to protect the pedestrian and third person by providing remedy under the Act on account of any injury or death arising out of the user of the vehicle in public place by which the necessity to have an insurance policy has been insisted so as to comply with the requirement of Chapter IX dealing with insurance of motor vehicles against “Third Party Risks”. Section 146 mandates the necessity of an insurance policy and prohibition in the user of motor vehicle in a public place in violation of requirement under that provision, including a vehicle which can be used for carrying dangerous or hazardous goods with ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 14 ``` ``` the exemption under sub-sections (2) and (3) of that Section. A conjoint reading of Section 146 with Section 147(1) of the Act would show that the liability that can be fastened against the insurer is the “ultimate” liability and not the “initial” liability that can be fastened with the right of recovery from the owner of the vehicle, who will stand vicariously liable for the wrong or liability to the driver of the vehicle or by the user of the vehicle. Hence, the liability that can be fastened against the insurance company under Section 147 (1) based on the policy is not conditional, but ultimate. The decision rendered by the Apex Court in Asha Rani's case, Rijawana Jamshed Mulla's case and Saju P.Paul's case (supra) is pertaining to ultimate liability of the insurance company to compensate on account of any injury or death of a person and not an initial liability that can be fastened on the insurance company with the condition of recouping the same from the owner, the insured. Necessarily, the exclusion in clause(b)(ii)of Section 147(1)regarding ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 15 ``` ``` “gratuitous passengers of a goods vehicle” should be and must be understood in relation to the liability that can be fastened based on the policy against the insurance company on account of any injury or death occasioned in the user of a motor vehicle in a public place, that is to say, the ultimate liability to compensate under the policy and not in relation to any initial liability that can be fastened against the insurance company with the right to recover from the owner of the vehicle. ``` ``` 6. It is Section 150 of the Act, which deals with the duty of the insurer to satisfy the judgments and awards against the person insured in respect of “third party risks” by which the liability required to be covered by a policy under clause (b) of sub-section (1) of Section 147 by way of an award or judgment is liable to be answered by the insurance company notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, but subject to the compliance of requirement as mandated therein including the defence that can be ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 16 ``` ``` taken, which are enumerated under sub-section (2) of Section 150 of the Act, which is extracted below for reference: ``` ``` “2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as its execution is stayed pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto, and to defend the action on any of the following grounds, namely:- ``` ``` (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-- ``` ``` (i) a condition excluding the use of the vehicle-- ``` ``` (A) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward; or ``` ``` (B) for organised racing and speed testing; or ``` ``` (C) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or ``` ``` (D) without side-car being attached where the vehicle is a two-wheeled vehicle; or ``` ``` (ii) a condition excluding driving by a named person or by any person who is not duly licenced or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or driving under the influence of alcohol or drugs as laid down in section 185; or ``` ``` (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or ``` ``` (b) that the policy is void on the ground that it ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 17 ``` ``` was obtained by nondisclosure of any material fact or by representation of any fact which was false in some material particular; or ``` ``` (c) that there is non-receipt of premium as required under section 64-VB of the Insurance Act, 1938 (4 of 1938).” ``` ``` 7.A mere perusal of sub-section(2) of Section 150 would show that the insurance company is empowered to defend the action on notice of proceedings which is mandatory so as to bring up the matter within the sweep of Section 150 only on breach of specified condition of policy enumerated in clauses(i)to (iii). It is so conspicuous that the liability towards a gratuitous passenger who met with a motor vehicle accident or by the user of the vehicle in a public place is not incorporated anywhere under Section 150 so as to defend or to bring up an initial liability on that count, presumably on the reason that the legislature did not even recognize such a liability or need of a policy covering a gratuitous passenger. ``` ``` 8.The Apex Court in Saju P.Paul's case (supra) having taken note of the peculiar facts involved in that case and an earlier decision rendered by a three- ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 18 ``` ``` Judge Bench of the Apex Court in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1] and also National Insurance Co. Ltd. v. Challa Upendra Rao [(2004) 8 SCC 517] permitted the victim to withdraw the amount in deposit and directed to recover the amount by the insurance company from the owner of the vehicle, by which an initial liability was fastened against the insurance company with the right of recovery from the owner. But a contrary view was taken in another decision by the Apex Court inNational Insurance Co. Ltd. v. Kaushalaya Devi [(2008)8 SCC 246] and the question was referred to a larger Bench inNational Insurance Company v. Roshan Lal [SLP(C)No.5699/2006] in the following lines: ``` ``` “Having regard to the submissions urged before us, we are of the view that this petition may be placed for consideration before a larger Bench. We notice that in some of the decisions such a direction was made in cases where the compensation had already been paid by the insurer, but there are observations therein which support the view that such a direction can be made in all cases where the owner has insured his vehicle against third-party risks. In National Insurance Co. Ltd. v. Baljit Kaur[(2004) 2 SCC 1] which is a judgment rendered by three Hon'ble Judges, such a direction was made in the special circumstances noticed by the court in para 21 of the Report. There are observations in Oriental Insurance Co. ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 19 ``` ``` Ltd. v. Ranjit Saikia [(2002) 9 SCC 390] which may support the contention of the petitioners before us.” ``` ``` 9.The Apex Court had also taken note of the reference made inNational Insurance Co. Ltd. v. Parvathneni [(2009) 8 SCC 785], wherein the question of initial liability that can be fastened with right to recover was referred to a larger Bench and based on the pendency of the issue before the larger Bench, the Apex Court in Saju P.Paul's case (supra) extended the beneficial portion of the legislation by issuing direction to the insurance company to allow the amount in deposit to be withdrawn by the victim and to recover the said amount from the owner as laid down in Challa Upendra Rao's case (supra). Hence, it can be concluded that the legal position is yet to be settled by the Apex Court and hence, the decision rendered by this Court inRijawana Jamshad Mulla's case (supra) cannot be termed as an authoritative pronouncement on the point, but extended the benefit based on the abovesaid decisions laid down by the Apex Court by ``` ``` MACA Nos.751/2023, 675/2023, 685/2023, 726/2023, 776/2023 ``` ``` 20 ``` ``` taking note of the pendency of the issue before the larger Bench. Hence, this court has no other alternative, but to extend the very same treatment to the parties to the present cases. ``` ``` Accordingly,all appeals will stand dismissed. ``` ``` Sd/- ``` ``` P.SOMARAJAN JUDGE ``` msp