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2014 DIGILAW 29 (GAU)

NEW INDIA ASSURANCE CO. LTD. v. HASINA BEGUM

2014-01-09

INDIRA SHAH

body2014
ORDER These appeal has arisen out of award dated 1.10.2009, whereby three claim cases namely, MAC No. 1374/2006, 1375/2006 and 1376/2010 have been disposed of by the learned Member, Motor Accident Claims Tribunal Kamrup, Guwahati. 2. The Victims of three Motor Accident Claims Cases, aforementioned, were travelling in vehicle bearing No. AS 01/R-7351 (truck) as labourer which met an accident on 8.5.2006 as a result thereof victim Sahajuddin, Maha Ali and Sahjamal died. 3. On allegations made on that behalf that he said truck was being driven rashly and negligently by the driver, three claim petitions in terms of section 166 of the Motor Vehicle Acts were filed by the respondent Nos. 1 to 7. The said truck admittedly was insured with the appellant herein. The Insurer while contesting the claims alleged that the victims were gratuitous passengers and the driver of the vehicle was not holding effective & valid driving licence. 4. The learned tribunal did not go into the question whether the victims were gratuitous passengers or travelling in the truck as labourer. However, it was held that the driver of the truck did not have the valid licence at the time of accident. Although there was violation of the conditions of the policy with regard to the driving licence, such violation cannot affect the claim of the third party, and in the case of the third party risk the insurer has to indemnify the amount of award. However, the insurer can recover the same from the insured, is so desired. 5. Relying on the case of National Insurance Co. Ltd. Vs. Parvathrieni & another (2009) 8 SCC 785 , learned counsel for the appellant has submitted that the tribunal was palpably in error as violation of the terms and conditions of contract of Insurance is a matter which comes within the purview of “statutory defences” which can be raised by an insurer under sub-section (2) of Section 149 of the Act. In the cited case it was held:- “3. Prima facie we are of the opinion if the Insurance Company proves that it has no liability to pay compensation to the claimants, the Insurance Company cannot be compelled to make payment and later or recover it from the owner of the vehicle.” 6. The aforesaid matter has been referred to larger Bench for consideration. Prima facie we are of the opinion if the Insurance Company proves that it has no liability to pay compensation to the claimants, the Insurance Company cannot be compelled to make payment and later or recover it from the owner of the vehicle.” 6. The aforesaid matter has been referred to larger Bench for consideration. There are number of cases which support the view that such direction can be made against third party risk. 7. In case of Manager, National Insurance Co. Ltd. Vs. Sanju P.Patel & another AIR 2013 SC 1064 it has been held that the pendency of consideration of questions raised, in case of National Insurance Co. Ltd. Vs. Paravathreni &Another (Supra), by a larger Bench does not mean that the course that was followed in Baljit Kaur and Challa Bharathamma should not be followed. In National Insurance Co. Ltd. Vs. Baljit Kaur & others the appellant Insurer were directed to satisfy the awarded amount in favour of claimant and recover the same from the owner of the vehicle. 8. In view of aforesaid legal position this Court finds that the award passed by learned tribunal needs no interference. The appeal is accordingly dismissed without any costs. 9. Return the LCR alongwith a copy of this judgment.