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2005 DIGILAW 2211 (RAJ)

National Insurance Company Limited v. Ramavtar

2005-08-23

DALIP SINGH

body2005
Judgment Dalip Singh, J.-Heard learned Counsel for the parties. 2. In this appeal the submission of the learned Counsel appearing on behalf of Insurance Company, appellant is that learned Tribunal erred in deciding the issue No. 3 against the appellant Insurance Company. Learned Counsel appearing on behalf of appellant Insurance Company submits that in the instant case the vehicle which was a Jeep bearing registration No. RJ-21 C-1067 was not covered by a permit for carrying passengers for hire and reward and, therefore, the injured who was traveling in the said Jeep having paid the fare could not be held entitled to any compensation to be paid by the appellant Insurance Company as there was breach of conditions of policy as contemplated under Section 149(2) (a)(i) of the Motor Vehicles Act, 1988. He submits that the Judgment relied upon by the learned Tribunal in the case of New India Assurance Co. Ltd. vs. Satpal Singh & Ors., reported in AIR 2000 SC 235 stands overruled in the case of New India Assurance Co. Ltd vs. Asha Rani, reported in AIR 2003 SC 607 and, therefore, the award passed by the learned Tribunal holding the appellant-Insurance Company liable deserves to be set aside. 3. Learned Counsel appearing on behalf of claimant on the other hand submits that even assuming that to be so, in view of the decision of their Lordships of Supreme Court in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors., reported in AIR 2004 SC 1531 ,even if it be held that Insurance Company is not liable in view of the Asha Ranis case (Supra), none the less as held by their Lordships of the Supreme Count in the case of Swaran Singh (Supra), the claimants would be entitled to recover the amount under the award passed by the Tribunal from the Insurance Company and the Insurance Company would be entitled to recover the said amount from the owner and driver of the vehicle. Learned Counsel appearing on behalf of the appellant-Insurance Company submits that in view of the recent decision in the case of National Insurance Co. Ltd. vs. Bommithi Subbhayamma & Ors., reported in 2005 (2) TAC 1 (SC). The Insurance Company cannot be held liable and the claimants are entitled to only recover the amount from the owner and driver of the vehicle. 4. Ltd. vs. Bommithi Subbhayamma & Ors., reported in 2005 (2) TAC 1 (SC). The Insurance Company cannot be held liable and the claimants are entitled to only recover the amount from the owner and driver of the vehicle. 4. I have given my anxious consideration to the rival submissions and I find that while it is true that their Lordships of the Supreme Count in the case of Bommithi Subbhayamma (Supra), have held that in the case of breach of insurance policy, in the case of person traveling in the vehicle not entitled to carry the passenger for hire and reward the Insurance Company is not liable and so far as above Judgment is concerned, there is no view expressed by their Lordships of the Supreme Court on the point which has been expressed in Swaran Singhs case (Supra), with regard to the Insurance Company being liable qua the claimants with a right to recover the amount from the owner and driver of the vehicle. The view expressed in the Swaran Singhs case (Supra) has not been overruled or distinguished in the aforesaid Judgment and, therefore, I find myself persuaded to take the view as has been taken by their Lordships of the Supreme Court in the case of Swaran Singh (Supra), more particularly in the facts and circumstances of this case since the amount under award was deposited by the appellant-Insurance Company and the same has been paid to the claimants-respondent upto the extent of 50% under the interim order of this Court dated 20.04.2005 and the balance 50% is lying in deposit with the Tribunal. 5. In view of the aforesaid, I am not inclined to entirely agree with the submission of the learned Counsel for the appellant that appellant-Insurance Company be exonerated. 5. In view of the aforesaid, I am not inclined to entirely agree with the submission of the learned Counsel for the appellant that appellant-Insurance Company be exonerated. While the findings on issue No. 3 passed by the learned Tribunal require to be set aside as the same were based upon the Judgment of Satpal Singhs case (Supra), which stands overruled by the subsequent Judgment in Asha Ranis (Supra), yet in view of the law laid down by their Lordships of the Supreme Court in the case of Swaran Singhs case (Supra), I am not inclined to accept this appeal in its entirety, as in view of the aforesaid Judgment of Swaran Singhs case (Supra), which has laid down that though the insurer may not be liable in terms of Section 149 of the Act, yet so far as the claimants are concerned, they can recover the amount from the insurer who shall have a right to recover the same from the owner and driver of the vehicle. It is hereby ordered that the amount under award which the claimants has been held entitled to and which in this case has been paid to the extent of 50% by the Insurance Company, the appellant-Insurance Company would be entitled to be reimbursed for the same from the owner and the driver. So far as the balance amount of 50% is concerned, the same has already been deposited with the Tribunal by the insurer. The claimants would be entitled to release of the same from the Tribunal and the Insurance Company would be entitled to recover the said amount also from the owner and driver of the vehicle. 6. Learned Counsel appearing on behalf of appellant-Insurance Company submits that a direction may be issued, as was issued in the case of Pramod Kumar Agrawal & Anr. vs. Mushtari Begam (Smt.) & Ors., reported on 2004 (8) SCC 667 as contained in Para 12 of the Judgment , to the executing Court for attaching the offending vehicle for realisation and reimbursement of the amount from the owner and driver of the vehicle. Their Lordships of the Supreme Court in the case of Pramod Kumar Agarwal (Supra), has passed the following directions:- “The offending vehicle shall be attached, as a part of the security. If necessity arises, the executing Court shall take assistance of the Regional Transport Authority concerned. Their Lordships of the Supreme Court in the case of Pramod Kumar Agarwal (Supra), has passed the following directions:- “The offending vehicle shall be attached, as a part of the security. If necessity arises, the executing Court shall take assistance of the Regional Transport Authority concerned. The executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle i.e., the appellant, I shall make payment to the insurer. In case there is any default, it shall be open to the executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.” 7. In the light of the aforesaid, while accepting the prayer of the appellant it is hereby ordered that learned Tribunal in the execution proceedings would be free to attach the vehicle in question or any other property of the owner and driver for realisation of the amount which the appellant-Insurance Company has deposited and paid to the claimant. 8. Subject to the aforesaid, this appeal is disposed of as indicated above. In view of the disposal of the appeal, the stay application does not survive and the same is also disposed of .