JUDGMENT
Mansoor Ahmad Mir, J.
1. This appeal is outcome of a claim petition presented by Mohammad Rafiq Bhat and Mst. Dilshada before Motor Accident Claims Tribunal, Pulwama. The claimants/respondents 1 and 2 have sought indulgence of Motor Accident Claims Tribunal, Pulwama for grant of compensation to the tune of Rs. 2.20 lacs, on the grounds that Mohammad Iqbal Haji owner/driver has driven the vehicle bearing registration No. 701/JKIB rashly and negligently on 21st, November, 1998 and hit one Masoom Jan, aged 5 years, daughter of claimants/respondents 1 and 2, who succumbed to the injuries.
2. The exparte proceedings have been drawn against respondent No. 3. The learned Presiding Officer Motor Accident Claims Tribunal Pulwama after hearing appellant and respondents 1 and 2, passed the impugned award. The appellant/insurer has been saddled with the liability with the direction that appellant/insurer is at liberty to recover the awarded amount from the owner, if advised.
3. Feeling aggrieved by the impugned award, the appellant has preferred the appeal in hand. The respondents have not appeared and have been set exparte.
4. Mr. Kawoosa heatedly argued that respondent No. 3 is the driver as well as owner of the offending vehicle. The owner was driving the vehicle without holding valid and effective driving licence. The tribunal has wrongly saddled the appellant/insurer with the liability. The owner having committed willful breach was to be saddled with the liability and not the insurer. Further, argued that awarded amount stands deposited, the same may not be disbursed to the claimants unless the ratio laid down by the Apex Court in case National Insurance Company Ltd. v. Swaran Singh, , is complied with, by the Motor Accident Claims Tribunal, Pulwama.
5. Considered. It is a fact that respondent 3 Mohammad Iqbal Haji (Owner) was driving the vehicle rashly and negligently. The respondents 1, 2 and 3 (i.e. claimants and owner) have not assailed the award, thus the award has attained finality.
6. The meat of the matter is, whether the direction: contained in the impugned award that insurer is at liberty to recover the awarded amount from respondent No. 3/ owner is correct or otherwise?
7. I am of the considered view that said direction is not in accordance with law. The insurer can recover the awarded amount from the owner/ insured, if it is held, that insured has committed willful breach without having recourse to a separate suit in execution proceedings before the tribunal. It is profitable to reproduce para-10 of the Apex Court judgment in case National Insurance Company Ltd. v. Swaran Singh, , herein:
“10. Where an adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on the certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue only if, as required by Sub-section (3) Section 168 of the Act the insured falls to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.”
8. The Apex Court has also held in case Oriental Insurance Co. Ltd. v. Nanjappan, reported in AIR 2004 SC 1631, that amount should not be disbursed to the claimants by the executing court i.e. Motor Accident Claims Tribunal, unless the direction contained in the said judgment is complied with. It is profitable to reproduce para-8 of the said judgment herein:
“8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kour’s case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the insured, 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 and in favour of the insurer. Before release of the amount the insured, owner of the vehicle shall be issued a notice and he shall be required to furnished security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall 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 insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties or the owner the vehicle, the insured.”
9. Having glance of the above discussion, the appeal is partly allowed and it is hereby held that insurer has every right to recover the awarded amount from the insured (owner) respondent 3 and there is no need to file a separate suit or proceeding.
10. The Motor Accident Claims Tribunal, Pulwama is also directed to disburse the awarded amount strictly in terms of the directions contained in the Apex Court judgment, referred hereinabove. The Registry is directed to transmit the amount deposited, to the Tribunal.
11. Accordingly, the appeal is disposed of. Send down the record.