Bombay High Court
First Appeal No. 668 Of 2013 vs Unknown on 17 December, 2013
Bench: A.P. Bhangale
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
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
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
