Bombay High Court
The Divisional Manager, Oriental ... vs Sindhubai W/O Manikrao Nidhan And ... on 19 June, 2017
Bench: S.B. Shukre
First Appeal No.857of2014 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO. 857 OF 2014
The Divisional Manager,
Oriental Insurance Company Limited, Baleshwar,
through Nagpur D.O.Palm Road, Civil Lines,
Nagpur. .....APPELLANT
...V E R S U S...
1. Sindhubai W/o Manikrao Nidhan,
Aged 50 years, Occupation-Labour,
Resident of Asoli, Post Dighori(Kale),
Tahsil Kamptee,District-Nagpur and
another.
2. Prabhati W/o Madhusudan Prusti,
Aged major,Occupation owner,
Resident of at Post Remuna,
District Balasore(Orissa). ...RESPONDENTS
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Shri M.N.Ahmed, Advocate for appellant.
Mrs. Vrishali Bhoyar,Advocate for respondent h/f Shri P.S.Mirache,
Advocate for respondent no.1.
None for respondent no.2.
-------------------------------------------------------------------------------------------
CORAM:- S.B.Shukre, J.
DATED :- JUNE 19,2017
ORAL JUDGMENT
Heard Shri M.N.Ahmad,learned counsel for appellant
and Mrs. Vrushali Bhoyar,learned advocate holding for learned
advocate for P.S.Mirache for respondent no.1.
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First Appeal No.857of2014 2
2. None appeared for respondent no.2, the owner of the
offending vehicle, though duly served with notice on final
hearing.
3. Paper book is dispensed with.
4. The appeal is only on the point as to whether or not the
Tribunal has power to issue direction to insurer to pay first and
recover later after holding that the insurance company is not liable
to pay any compensation.
5. According to learned counsel Shri M.N.Ahmed issuance
of such a direction is not permissible as Tribunal does not have
any power vested in it in this regard. He has relied upon the case
of Traders Pvt. LTD., Ahmedabad and another..vs.. Sunanda
wd/o Krishna Machivale and others, [2009(1)Mh.L.J.398.
According to learned counsel for the respondent no.1 the law has
been clarified by Division Bench of this Court in this very case of
Traders Private Limited(supra) and that it has refused to lay
down a broad proposition that in all cases, the insurer must be
made to pay the entire compensation amount and then recover it
from the owner of the offending vehicle.
6. On going through the judgment of Traders Private
Limited, I find that submission of learned counsel for the
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First Appeal No.857of2014 3
respondent no.1 is consistent with the principles of law laid down
in that case. Of course, learned counsel Shri M.N.Ahmed for the
appellant has invited my attention to the observations of Division
Bench in paragraph nos.56 and 59 to support his submission.
But, in my view, the observations made in the judgment are to be
considered in their entirety and if one does so one would find
what has been canvassed on behalf of respondent no.1 is what
ratio of Traders Private Limited is. In paragraph nos. 56 and 59 ,
the Division Bench referred to various judgments of Hon'ble
Supreme Court as well as one judgment of learned Single Judge of
this Court in First Appeal No.827 of 2006 and First Appeal No.826
of 2006 decided on 04/08/2007 at Aurangabad Bench and
observed that the learned Judge of Aurangabad Bench of this
Court was right when he held that the direction to pay first and
recover later was issued by the Hon'ble Apex Court in exercise of
its jurisdiction under Article 142 of the Constitution of India read
with Article 136 of the Constitution for doing complete justice
between the parties and such powers are not vested in the High
Court. One need say nothing further about the absence of power
in the High Court similar to the power of the Hon'ble Apex Court
under Article 142 of the Constitution of India. At the same time,
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First Appeal No.857of2014 4
in paragraph no.65 of the Traders Private Limited(supra), the
Division Bench of this Court after considering the effect of the
judgments of the Hon'ble Supreme Court in various cases
including the cases of M/s National Insurance Co.Ltd...vs..Baljit
Kaur and others, 2004(2)Mh.L.J.(SC)372=AIR 2004 SC 1340,
Oriental Insurance Co.Ltd...vs..Brij Mohan and
others(2007)7SCC 56, National Insurance Company Limited
..vs..Kusum Rai and others(2006) 4 SCC 250, Oriental
Insurance Co.Ltd...vs..Nanjappan and others (2004)13SCC224
and Oriental Insurance Company Limited ..vs.. Syed Ibrahim
and others,2007 ACJ 2816 also held that, it was unable to lay
down as a broad proposition that in all cases, the insurer must be
made to pay the entire compensation amount and then recover it
from the owner of the offending vehicle. This would mean that
there would be a category of cases wherein it would be permissible
in law for the Tribunal to issue such kind of direction i.e. direction
to pay first and recover later as issued in the present case by the
Tribunal. Therefore, now it would have to be seen whether or not
the fact situation of the instant case justified issuing of such a
direction.
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First Appeal No.857of2014 5
7. On going through the facts of the case, I find that they
provide sufficient reason to the Tribunal to issue such a direction.
The accident in the instant case had occurred on 15/1/2007
when the claimant, a pedestrian ,was walking on the road from
Mouda to Nagpur. The offending vehicle bearing registration
no.OR-01/G-002 was found to have been driven rashly and
negligently. It has been further found that the driver of this
offending vehicle could not control the speed and direction of the
vehicle and the result was that the vehicle dashed against the
claimant. The claimant sustained serious injuries and although she
could recover from the accident,she could not completely recover
from the injuries that she sustained. She became permanently
partially (10%) disabled. The insurance company was exonerated
of its liability only because of the fact that the driver of the
offending vehicle did not possess the valid driving license. In
other words, there was a breach of condition of the insurance
policy because of which the insurer was exonerated of it's
liability. Such exoneration of the liability did not change the
equation between the claimant and insurance company. The
claimant continued to be third party to the insurance policy and
the claim under Section 166 of the Motor Vehicles Act was laid
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First Appeal No.857of2014 6
for indemnifying the third party or third property damage. These
facts are distinguishable from those cases wherein the insurance
company was bailed out from its liability because the claimants
themselves were the tort feasors or the gratuitous passengers.
In my view, the Tribunal exercised rightly its discretion to issue a
direction of first pay and recover later by broadly following the
principles of law laid down in Traders Private Limited (supra). I do
not find any illegality or perversity in the impugned judgment and
order. There is no warrant for making any interference with the
same. The point is answered accordingly.
ORDER
i) Appeal stands dismissed with costs.
ii) The parties to bear their own costs.
JUDGE
kitey
