Jharkhand High Court
National Insurance Company Ltd. ... vs Maryam Khatoon on 15 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 126 of 2016
National Insurance Company Ltd. through Divisional Manager, City, Centre,
Sector-4 PS Bokaro Steel City, Bokaro .... .... Appellant/Claimant(s).
Versus
1.Maryam Khatoon
2.Mehrul Nisha
3. (Deleted)
4. Taniya Parbin
5. Adil Hussain .... .... (Claimant Nos. 1 to 5 respectively)
6. K. Selvaraj
7. K. Murgan .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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FOR THE PETITIONER(S) : Mr. Alok Lal, Advocate
FOR THE RESPONDENT NO.1: Ms. Suchitra Pandey, Advocate
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09/15.03.2021
The lawyers have no objection with regard to the proceeding, which has
been held through video conferencing today at 11.00 A.M. They have no
complaint in respect to the audio and video clarity and quality.
2. Heard learned counsel appearing for the appellant and the learned Counsel
for the respondent(s).
3. This appeal is filed against the judgment and award dated 5.10.2015
passed by the District Judge 1st Cum- Motor Vehicles Accident Claims Tribunal
Bokaro in TMV No. 9 of 2013.
4. This appeal has been filed by the Insurance Company. The only ground
taken by the appellant-Insurance Company is that the right to recovery should
have been considered by the tribunal based on the evidence.
5. Counsel for the appellant submits that at paragraph No.17 of the judgment
of the court below wherein a liberty was granted to get the breach of policy
decided by the competent court is erroneous as it is the Tribunal who is competent
to decide the question of breach of policy. He submits that the tribunal should
have decided as to whether there exists any breach of policy or not and if the
tribunal found that the there was a breach of policy, the right to recovery should
have been given to the appellant. He submits that there is no concept of deferring
the finding on the issue of breach of policy and there is no concept of getting the
said issue decided by another competent court.
6. Counsel appearing on behalf of claimants submits that the claimants are
entitled to Rs. 16,32,000/- as directed and the said amount has to be paid by the
Insurance Company and liberty has already been granted to the Insurance
Company to get the issue of breach of policy decided by a Competent Court and
realise the compensation, if so, awarded from the owner if the Insurance Company
gets success in the said adjudication.
7. Considering the aforesaid rival consideration, I have gone through the
impugned award. The Insurance Company had taken plea that there is a breach of
conditions of policy. When a plea of breach of conditions of policy is taken, it is
the duty of the Motor Accident Claims Tribunal, who is deciding the claim
application, to decide the aforesaid issue. An issue to the aforesaid extent should
have been framed by the Tribunal. In this case tribunal has failed to discharge the
said duty. A very strange approach has been taken by the Tribunal on the issue
which has been raised by the Insurance Company in respect of breach of policy.
The Tribunal in Paragraph No.17 has held as follows:-
"17. For the aforesaid reason, I direct the Insurance
Company, O.P No.3 to pay the compensation first to the claimants
and, thereafter, the Insurance Company would be at liberty to get
the breach of policy decided by the Competent Court and realise
the amount of compensation, of so awarded, from the owner of the
Truck in case the Insurance Company gets the success in
adjudication of breach of policy by Court of competent
jurisdiction. The fact of breach of policy is not fit to be decided in
this case because the owner and driver of the offending vehicle did
not appear and the proceeding against them has been directed to
be proceeded ex-parte."
8. This approach by the court is unknown in law. When a question has been
raised in respect of breach of Insurance Policy, the Tribunal who is hearing the
Motor Accidents Claim's Case and is deciding the quantum of compensation is
duty bound to answer the same. Further in this case, I find that the Tribunal has
given liberty to get the breach of policy decided by the competent Court and
realise the amount of compensation, if so, awarded from the owner, in case the
Insurance Company gets a success in adjudication of breach of policy by the court
of competent jurisdiction. This sort of direction is also unknown in law. As held
earlier it is the same tribunal who has to decide the aforesaid issue. The Insurance
Company cannot be relegated it to a Civil Court for filing a declatory suit to get a
declaration whether there is any breach of policy or not. Even if the case
proceeded ex-parte against the owner or driver then also it is the duty of the
Tribunal to decide the issue on the basis of the evidence led by the parties. The
court thus abdicated himself from deciding the aforesaid issue on a wrong notion.
Thus this appeal is allowed and remanded to Motor Accidents Claims Tribunal,
Bokaro only to the extent to frame and decide the following issue:-
1) Whether there is any breach of conditions of policy by the offending
vehicle having Registration No. KA 51A 4779 ?
2) Whether the Insurance Company is entitled to recover the amount of
compensation paid to the claimant from the owner of the vehicle ?
9. Both these two issues either if answered against Insurance Company or in
favour of the Insurance Company will not affect the amount of compensation. In
case right to recovery is given the Insurance Company, it will have to recover
the amount from the owner of vehicle and if the said right is not given to the
Insurance Company then the Insurance Company has to pay the said amount. In
both cases the amount has to be paid by the Insurance Company. Thus I direct
the Insurance Company to disburse the amount of compensation in full to the
claimant within a period of eight weeks from today. Insurance Company is at
liberty to withdraw the statutory amount which was filed during filing of this
appeal. The amount of compensation should be paid in entirety to the claimants.
10. This appeal is thus allowed to the limited extent mentioned above after
setting aside the part of the award dated 5.10.2015 containing the direction and
observation given by the court below in paragraph no.17 of the impugned award.
The finding in respect of quantum and other issues has not been disbursed. The
Tribunal will pass a fresh order after hearing the parties preferably within a
period of six months from today.
(ANANDA SEN , J)
anjali/ C.P 3
