JUDGMENT
Y.P. Nargotra, J.
1. This is an appeal of Insurance Company against the judgment and award of Motor Accident Claims Tribunal Pulwama dated 4th of September 2002, whereby the respondents 1 to 4 who were claimants before the Tribunal have been awarded compensation to the tune of Rs. 75,000 minus interim relief with simple interest at the rate 9% per annum till the final realisation, on account of the death caused of the deceased Ali Mohd Bhat who was hit by offending vehicle truck bearing registration No. 5572/JKP at wantipora insured with the appellant and rashly and negligently was driven by respondent No. 5 the driver. The respondents 6 and 7 have been shown to be owner and registered owner respectively. The amount of compensation awarded has been ordered by the Tribunal to be paid by the appellant Insurance Company. Before the Tribunal it was pleaded by the appellant Insurance company that the driver of the vehicle was not holding a valid licence and therefore there being violation of Insurance policy, the insurer was not liable to indemnify the owner by paying the compensation to the claimants. Ld. Tribunal in this behalf framed an issue for adjudication and has decided the issue (Issue No. 3) in favour of Insurance company and against the respondents owner and driver and the claimants. However by relying upon the judgment of the Apex Court reported in AIR 2000 SC 1419 held the Insurance company the appellant liable to pay compensation to the 3rd party and also held that insurer to be entitled to recover the said amount of money from the insured i.e. the owner of the offending vehicle as also driver thereof.
2. The appellant Insurance company in this appeal has challenged the award of the Tribunal on two counts;
(i) That the quantum of the compensation has not bee rightly fixed, and
(ii) If the Insurance company is not found entitled to maintain the appeal on the question of quantum then the Ld. Tribunal erred in not recovering the amount from the owner at the behest of the Insurance company which it had to pay to the claimants.
3. I have heard LG for the appellant and the Ld. counsel for the claimants/respondents 1 to 4. The driver and the owner respondents 5 to 7 have not Chosen to appear and contest the appeal. The Insurer/appellant cannot be allowed to maintain the appeal on the question of quantum as it has not contested the award on merits before the Tribunal after obtaining leave under Section 170 of M.V. Act, in view of the law laid down by the Hon’ble Supreme Court in AIR 2002 SC 3350, in which it has been held:
“Even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regard negligence of contributory negligence of the offending vehicle, unless the conditions precedent, specified in Section 170 of 1988 Act is satisfied. Motor Vehicle Accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer conies to the sense as a result of statutory liability created under the Motor Vehicle Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of the Motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.”
4. Ld. Tribunal has rightly saddled the appellant with the liability to pay the compensation in view of law laid down in AIR 2000 SC 1419 and has correctly held that insurer is entitled to recover the said amount from the owner and driver. The contentions of Ld. counsel that the Tribunal ought to have itself started process of recovery in my view is untenable because while deciding the claim petition the Tribunal was required only to adjudicate upon the respective rights and liabilities of the parties which has been done in the present case. The question of recovery of amount paid by the appellant would arise before the Tribunal when execution of its judgment/award is taken, for which Tribunal stands empowered under law and the rules. The appeal on the second court also does not merit admission and as such is disposed of.