First Appeal No. 668 Of 2013 vs Unknown

                                        1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

                      NAGPUR BENCH : NAGPUR




                                                                            
                                                    
    First Appeal No. 668 of 2013

    Appellant         :     ICICI Lombard General Insurance Company 




                                                   
                            Limited, Zenith House, KK Marg, Mahalaxmi,

                            Mumbai, through its  Branch Manager, ICICI




                                           
                            Lombort General Insurance Company Limitd,
                           
                            5th Floor, Landmark, 56, Warda Road, Nagpur

                            versus
                          
    Respondents       :     1)  Shankarrao Ganpatrao Jichkar, aged about 

55 years, occ: service, resident of Banoda (Shahid), Tahsil Warud, District Amravati

2) Ms Malatai Ramesh Dafe, aged adult, resident of Ward No. 3, Warud, Dist. Amravati Mr R. D. Bhuibhar, Advocate for appellant Mr A. A. Sarde, Advocate for respondent no. 1 Coram : A. P. Bhangale, J Dated : 17th December 2013 ::: Downloaded on - 23/12/2013 20:35:45 ::: 2 Oral Judgment

1. Feeling aggrieved by the judgment and award dated 30th April 2013 passed by the learned Chairman Motor Accident Claims Tribunal, Amravati whereby compensation was awarded in the sum of Rs. 45000/-

inclusive of amount of no fault liability together with interest at the rate of 7% from the date of petition till realization, the appellant has filed present appeal.

2. Learned counsel for appellant Insurance Company inivted my attention to impugned judgment and award in order to submit that the claimant drove his motor-cycle MH-27/Y-9861 from Warud ST Stand. He was proceeding towards Shendurjanaghat Road in normal speed and according to him, offending motor-cycle MH-27/AB-3195 gave dash to the petitioner's motor-cycle. In the result, petitioner/claimant suffered fracture to right leg of tibia and fibula; fracture of lateral end of left clavicle etc. According to learned Advocate for the Insurer, if at the time of the accident the offending motor-cycle driver did not hold valid motor driving licence, then it is case of fundamental breach of Insurance Policy and therefore, insurer would not be liable to pay compensation awarded.

3, On the other hand, learned counsel for respondent no.

1supported the impugned judgment and award on the ground that it is well-reasoned and sound judgment with reference to judicial precedents which were cited on the subject.

4. After hearing submissions and after perusing impugned judgment and award, I do not find any justifiable reason to interfere with the impugned Award because it is for insurer to plead the breach of insurance policy and then prove fundamental breach, as alleged, by leading cogent evidence. Insurance Company can bring fact on record that driver was not holding valid motor vehicle driving licence. However, if insurer has failed to bring this fact on record and to prove breach of policy, insurer will have to satisfy the award. However, Insurer may recover the amount paid from owner/driver of the offending motor vehicle in case the Insurer can satisfy the Tribunal that there was fundamental breach of policy and that Insurer was not liable to pay compensation to the third-

party. In other words it is open for the insurance company to point out that insured was responsible to pay compensation to the third -party. It can be done in the same proceedings by making appropriate application before the Tribunal and separate proceeding need not be filed as the Tribunal can pass incidental and consequential order pursuant to execution of final award if it is satisfied that insurer was not liable to compensate thid party on the ground that risk was not covered by the insurance policy or insurance ::: Downloaded on - 23/12/2013 20:35:45 ::: 4 contract. Since insurer has remedy to apply accordingly before the Tribunal no interference is required in exercise of appellate jurisdiction in the impugned judgment and award.

5. In the result, appeal is dismissed with no order as to costs.

Amount deposited in this Court, if any, be transmitted to the Tribunal for passing necessary orders as to its disbursement to claimant. Balance amount, if any, be refunded to the appellant.

A. P. BHANGALE, J joshi ::: Downloaded on - 23/12/2013 20:35:45 :::