Arijit Pasayat JUDGMENT
Arijit Pasayat, J.
1. Leave granted.
2. Oriental Insurance Company Limited (hereinafter referred to as an 'insurer') calls in question legality of the judgment rendered by a Division Bench of the Madras High Court holding that the respondents (hereinafter referred to as the 'claimants') were entitled to compensation from the owner of the vehicle (described hereinafter as 'insured') which was the subject matter of insurance with the appellant and that the insurer had the liability to pay the compensation by way of indemnification.
3. The Motor Accident Claims Tribunal and Subordinate Court, Tirupur (hereinafter referred to as the 'Tribunal') had held that the liability was of the insured alone, and the insurer had no liability. In appeal, for accepting the case of the respondents-claimants the High Court held that the decision of this Court in New India Assurance Company v. Satpal Singh and Ors., MANU/SC/0751/1999 : AIR2000SC235 was applicable. It has to be noted that the accident took place on 15.9.1990 and the Claim Petition was filed under Motor Vehicles Act, 1988 (in short the 'Act').
4. In support of the appeal, learned counsel for the insurer submitted that the judgment in Satpal Singh's case (supra) has been reversed in New India Assurance Co. Ltd. v. Asha Rani MANU/SC/1105/2002 : AIR2003SC607 and the said decision was followed in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy MANU/SC/0046/2003 : [2003]1SCR537 .
5. Learned counsel for the respondents-claimants on the other hand submitted that though the view in Satpal Singh's case (supra) has been reversed, yet in a recent decision in National Insurance Co. Ltd. v. Baljit Kaur and Ors. MANU/SC/0009/2004 : AIR2004SC1340 it has been held that it would be equitable if the insurance company pays the amount of compensation to the claimant and recovers it from the insured.
6. It has to be noted that the insured did not appear before the High Court and also has not appearing in this Court in spite of service of notice.
7. The view of the High Court cannot be maintained in view of what has been stated in Asha Rani's case (supra) and Devireddy's case (supra). To that extent the judgment of the High Court is unsustainable. At the same time, the observations of this Court in Baljit Kaur's case (supra) also need to be noted. In para 21 of the judgment, it was observed as follows:
"The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be........