2012(6) ALL MR 164
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

M.N. GILANI, J.

The Oriental Insurance Co. Ltd. Vs. Suhas S/O. Sitaramji Tambe & Ors.

First Appeal No. 517 of 2011,First Appeal No. 636 of 2011

24th July, 2012

Petitioner Counsel: Mr. A. R. GODBOLE

Motor Vehicles Act (1988), Ss.147, 166 - Compensation - Liability of Insurance Company - Where there is plea of breach of conditions of policy of insurance in such case also, the claims Tribunal as well as High Court has jurisdiction to issue directions to the Insurance Company to satisfy the award and then to recover the same from vehicle owner. 2011 ALL SCR 850, 2011 ALL SCR 1232 Rel. on. (Paras 5, 6)

Cases Cited:
National Insurance Co. Ltd. Vs. Parvathneni & anr., 2010 ALL SCR 172 =SCC 2009 (8) 785 [Para 4]
Traders Pvt. Ltd. and anr. Vs. Sunanda and ors., 2010 ACJ 669 [Para 4]
Manager, United India Insurance Co. Ltd. Vs. Kamalabai Mukunda Kumare & ors., 2010(6) ALL MR 789 =2010 ACJ 1011 [Para 4]
United India Insurance Co Ltd. Vs. Sindhubai Darwante, 2010 ALL MR (Supp.) 220 =2010 (3) Mh.L.J.886 [Para 5]
Kusum Lata & anr. Vs. Satbir and ors., 2011 ALL SCR 850 =2011 ACJ 926 [Para 5]
Jawahar Singh Vs. Bala Jain & ors., 2011 ALL SCR 1232 =2011 (3) T.A.C. 12 (S.C.) [Para 5]
Oriental Insurance Co. Ltd. Vs. Chandra Devi and ors., 2012 ACJ 567 [Para 5]


JUDGMENT

JUDGMENT :- Both these appeals are directed against the judgments and awards dated 10.12.2010 passed by Motor Accident Claims Tribunal, Nagpur in Claim Petition Nos.1115/2005 and 1114/2005 whereby the petitions were allowed partly and compensation of Rs.1,70,000/- and Rs.7,68,400/- respectively were awarded to the claimants on account of death of Shashikala and Sitaram Tambe, who died in motor vehicular accident occurred on 14.08.2005 involving truck bearing Registration No. CG-04/G-7817 insured with the appellant.

2. The appellant put forth defence that there was breach of term of insurance policy in the sense that the driver of the offending vehicle was not holding valid driving license.

3. The learned tribunal framed issues. The evidence adduced before the tribunal was oral as well as documentary. The learned tribunal accepted the defence that there was breach of term of insurance policy for the reason that the driver of the offending vehicle was not holding the valid driving license while driving the ill fated vehicle.

4. Mr. Godbole, learned counsel for the appellant, contended that the learned tribunal ought not to have directed the appellant to satisfy the award and then to recover the amount from the original owner of the vehicle. According to him, when the tribunal held that there was breach of term of insurance policy, the question of the appellant-Insurance Company depositing the amount with liberty to recover it from the owner of the vehicle does not arise. He invited my attention to the decision of the apex Court in the case of National Insurance Co. Ltd. ..vs..Parvathneni & anr.; SCC 2009 (8) 785 : [2010 ALL SCR 172] and also Traders Pvt. Ltd. and anr. ..vs.. Sunanda and ors. 2010 ACJ 669, decided on 27.08.2008 wherein it is observed that,

"Whether rights of insurance company under section 96 (3) and (4) to recover from the insured under certain contingencies can be converted into its obligation or liability to pay to the claimants first in all cases whether it is liable or not and then recover from the insured-Held: no; otherwise section 96(2) would become superfluous; insurance company of car may recover the amount from owner of truck...."

The learned counsel for the appellant further relied upon the judgment in Manager, United India Insurance Co. Ltd. ..vs.. Kamalabai Mukunda Kumare & ors.; 2010 ACJ 1011 : [2010(6) ALL MR 789] decided on 24.03.2010. However, after going through the judgments of the tribunal, it is clear that the legal position, as it stands today, has been well considered by it, which is evident from the observations made thus:

"34. However, the Hon'ble Bombay High Court in the case of United India Insurance Co Ltd -vs- Sindhubai Darwante reported in 2010 (3) Mh.L.J.886 discussed all the authorities including decision given by the Apex Court in the case of National Insurance Co Ltd -vs- Parvathneni and another. The Hon'ble Bombay High Court relying upon the cases of National Insurance Co Ltd vs Narendra Kaur (2008) 9 SCC 100; 2008 (4) TAC 746 (Vide para 16), Oriental Insurance Co -vs- Brij Mohan (2207) 7 SCC 56; 2007 (3) TAC 20 (vide para 13), New India Insurance Co -vs-Darshan Devi (2008) 7 SCD 4162 (vide para 21), etc come to the conclusion that the insurer can be directed to first deposit the compensation and then recover it from the insured. It is also noted that, the Apex court in the case of Parvathneni's have a doubt about the correctness of the deceased given in the other cases, and therefore the question has been referred to the Larger Bench.

35. The decision given by the Hon'ble Bombay High Court relying upon the decision of the Apex Court persuade me to take the view that when it is established by the insurance company that they are not liable to pay the compensation on account of the owner committing breach of the terms and conditions of the policy also the Insurance Company can be directed first to deposit the compensation and recover it from the owner of the vehicle."

5. After decisions of this Court in United India Insurance Co Ltd. ..vs.. Sindhubai Darwante reported in 2010 (3) Mh.L.J.886 : [2010 ALL MR (Supp.) 220], the apex Court in Kusum Lata & anr. ..vs.. Satbir and ors; 2011 ACJ 926 : [2011 ALL SCR 850] held that the tribunal as well as High Court has jurisdiction to issue directions to the insurance company to satisfy the award and then to recover the same from vehicle owner. Similar view has been taken by the apex Court in Jawahar Singh ..vs.. Bala Jain & ors.; 2011 (3) T.A.C. 12 (S.C.) : [2011 ALL SCR 1232] and also by Division Bench of the Allahabad High Court in the case of Oriental Insurance Co. Ltd. ..vs.. Chandra Devi and ors; 2012 ACJ 567.

6. For the reasons aforestated, no fault can be found with the award passed by the tribunal directing the appellant to satisfy the award at first instance and then to recover it from the owner of the vehicle. The appeals are, therefore, dismissed. No order as to costs.

Appeal dismissed.