Bombay High Court

Bajaj Allianz General Insurance ... vs Tanuja Nandkumar Pawar (Jamge) ... on 31 March, 2016

Bench: P.R. Bora

                                          1

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD




                                                                             
                            FIRST APPEAL NO. 2993 of 2015




                                                     
      Bajaj Allianz General Insurance Co. Ltd.,
      Through its Branch Manager,
      G.E. Plaza, Airport Road, D.G.P House,
      Ground Floor, 88-C, Old Prabhadevi Road,




                                                    
      Airport Road, Yerwada, Pune.                             .. Appellant
                                                              (Orig. Resp. No.2)
               Versus

      1.       Tanuja w/o Nandkumar Pawar (Jamge




                                       
               Age : 26 years, Occu.: Household,
               R/o. Turori, Tq. Omerga,
                             
               Dist. Osmanabad.

      2.       Neha D/o Nandkumar Pawar (Jamge)
                            
               Age : 10 months, (Minor)

      3.       Nikita D/o Nandkumar Pawar (Jagmge)
               Age : 10 months, (Minor)
               R/o. Guloli, Tq. Aland, Dist. Gulbarga.
      

               Resp. Nos. 2 & 3 are minor u/g of
               their natural mother i.e. Resp. no.1.
   



      4.       Dropadi Bhim Pawar (Jamge),
               Age : 49 years, Occu. Household,
               R/o. as above.





      5.       Bhim Gopal Pawar (Jamge)
               Age : 53 years, Occu.: Agriculture,
               R/o. as above.                                ..(Orig. Claimants)

      6.       Ankush Dnyanoba Dhumal,
               Age : 35 years, Occu. Busness,





               R/o. Turori, Omerga,
               Dist. Osmanabad.                           ... Respondents
                                                              (Orig. Resp. No.1)
                                       ...
      Mr. Uday Malte, Advocate for Appellant
      Mr. B.L. Sagar Killarikar, Advocate for Respondent Nos. 1 to 5

                                         ...




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                                                2


                                        CORAM: P.R.BORA, J.




                                                                               
                                        Dated : 31st March, 2016.
                              ...




                                                       
      JUDGMENT :

1) Admit. With the consent of the learned Counsel

appearing for the parties, heard finally.

2) Appellant / Insurance Company has questioned in the

present appeal the judgment and award passed on 28.04.2011

by the Motor Accident Claims Tribunal at Omerga in M.A.C.P. No.

26/2009.

3) Respondent No.1 to 5 herein had filed the aforesaid

claim petition under section 166 of the Motor Vehicles Act

(hereinafter referred to as 'the Act') seeking compensation on

account of the accidental death of Nandkumar Pawar from the

owner and insurer of the Truck alleged to be involved in the

alleged accident. The learned Tribunal, after having assessed

the evidence oral as well as documentary brought before it,

partly allowed the claim petition with proportionate cost only

against respondent no.1, however, passed the further order

directing respondent No.2 Insurance Company at the first

instance to deposit the amount of compensation to the tune of

Rs.4,66,000/- along with interest thereon at the rate of 9% from

the date of filing of the Claim Petition till its realization, with

liberty to recover the said amount from respondent no.1.

4) In the present appeal, it is the principle grievance

raised by the Insurance Company that, the Tribunal has grossly

erred in directing the Insurance Company to first deposit the

amount of compensation and then to recover it from the owner of

the vehicle. Shri U.S. Malte, learned Counsel appearing form the

appellant / Insurance Company submitted that, the direction as

aforesaid issued by the Tribunal is improper and illegal and the

Tribunal was not possessing any power or authority to issue such

direction. Learned Counsel further submitted that, when the

Tribunal has recorded a clear finding that, Insurance Company

has proved that, the owner did commit the breach of policy

condition, no such direction could have been issued by the

learned Tribunal. Learned Counsel further submitted that, pay

and recover orders can only be passed by the Hon'ble Apex Court

under its extra ordinary jurisdiction under article 142 of the

Constitution of India, however, such power cannot be exercised

by the Tribunal. In order to support the contentions raised by

him, the learned Counsel has relied upon the following

judgments:

(a) National Insurance Co. Ltd. V/s Parvathneni & another, reported in (2009) 8 SCC 785.

(b) United India Insurance Co. Ltd. V/s Anubai Gopichand Thakre & Ors., reported in Mh.L.J 2008 (1) 73.

Another, reported in 2015(1) Bom. C.R. 333.

(d) The Manager, United India Insurance Co Ltd. V/s Kamalabai Mukunda Kumare & Ors.,reported in 2010(O) BCI 89.

(e) Bhuwan Singh V/s M/s. Oriental Insurance Co. Ltd. & Anr.,

reported in AIR 2009 SC 2177.

5) Shri B.L. Sagar Patil, the learned counsel appearing

for the original claimants / Respondent nos. 1 to 5 in the present

appeal strongly resisted the submissions advanced by the

learned Counsel for the appellant / Insurance Company. The

learned Counsel submitted that, the Tribunal has passed just and

legal order and was competent to issue the directions as are

there in the impugned award. Learned Counsel further

submitted that, not holding of valid driving license at the time of

occurrence of the accident cannot be said to be a fundamental

breach of the policy condition and in such circumstances, the

Insurance Company cannot be absolved from its liability to

indemnify the insurer to cover the risk of the third party. The

learned Counsel further submitted that, from the material on

record, it is quite clear that, earlier to the occurrence of accident

the driver of the offending vehicle was holding a valid driving

license and subsequently the same was renewed. According to

the learned Counsel, thus it was not the case that the driver of

the offending vehicle was never holding a valid driving license or

that he was disqualified from holding such driving license. In

such circumstances, according to the learned Counsel, the order

passed by the Tribunal is legal and proper and no interference is

required in the said order. In order to support the contentions

raised by him, the learned Counsel has relied upon the following

judgments:

(a) Bajaj Allianz General Insurance Co. Ltd. V/s Ashwita Arvind Poll and ors., reported in 2015 (2) Bom.C.R. 359

(b) Divisional Manager V/s Vandana Prabhakar Gaigol and

others, reported in 2015 (4) Bom. C.R. 588.

6) Material on record in the instant case reveals that,

though there was no renewal of the driving license of the driver

of offending vehicle on the date of accident, subsequently the

same was renewed. As has come on record through the

evidence of the junior Clerk working in the R.T.O. office at

Osmanabad, in the period prior to occurrence of the accident, the

driver of the offending vehicle was holding a valid driving license

and as mentioned here-in-above, subsequently the same was

renewed. It is not the case of the appellant Insurance Company

that, the said driver was disqualified from the driving the vehicle

during the relevant period. It is also not the case of the

Insurance Company that, not holding of the valid license by the

driver of the offending vehicle has contributed to the cause of the

accident. In premise of the facts as above, relying upon the

judgment of the Hon'ble Supreme Court in the case of National

Insurance Company V/s Swarnsingh and others, 2004(1)

TAC. 321 (SC), the learned Tribunal has passed the order and

has thereby directed the Insurance Company to satisfy the award

at the first instance and thereafter recover the said amount from

the Insured. In para 83 of the said judgment, the Hon'ble Apex

Court has observed thus:

"83. Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance

company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does not mean that it did not have

initial liability at all. Thus, if the insurance

company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this

interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given

effect to.

7) In the instance case, admittedly, the insurance policy

was in force on the date of accident. The insurer and the insured

are bound by the conditions enumerated in the policy, if the

insured violates any of the policy condition, the insurer may not

be liable to the insured, but the insurer is made statutorily liable

to pay compensation to the third parties.

8) I have gone through the judgments relied upon by

the learned Counsel for the appellant. The law laid down in none

of the said judgments would apply to the facts of the present

case.

9) In view of the law laid down by the Hon'ble Apex

Court in the case of Swarnsingh (cited supra), it does not