1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 970 OF 2009 Bajaj Allianz General Insurance Co. Ltd., Through its Branch Manager, 2nd Floor, Adalat Road, Aurangabad. Appellant V/s 1. Prabhakar S/o Marotirao Dhanpalwar Age : 50 years, Occ : Business & Agri., R/o Betmogra, at present R/o Borgaon-Thandi, Tq. Billoli, Dist. Nanded. 2. Ramchandra S/o Maruti Basapure Age : Major, Occ : Agriculture, R/o Betmogra, Tq. Mukhed, Dist. Nanded & in House No.1/11/591/Maganpura, Nanded. Respondents ------------------------------------------------------------------------------------------------------- Mr. S. G. Chapalgaonkar, the Advocate for appellant. Mr. S. N. Lavekar, Advocate for the respondent no.1. Mr. Vijay Jatal holding for Mr.H.I. Pathan, Advocate for Respondent No.2. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 22th September, 2009. ORAL JUDGMENT : 1. This appeal challenges the order dated 05.01.2009 passed by the learned Member, Motor Accident Claims Tribunal at Biloli, Dist. Nanded below Exhibit-5 in Motor Accident Claim Petition No.34/2007. By this order, the appellant insurance company along with the owner of vehicle are directed to pay jointly and severally compensation of Rs. 25,000/- towards no fault liability to the claimants as required under 2 section 140 of the Motor Vehicles Act, 1988 along with future interest at the rate of 6% p.a. 2. The notice of this appeal was issued to the respondents on 8th June, 2009 and the record and proceedings were also called. The parties were put on notice that the appeal shall be heard finally at the stage of admission. Shri. S. N. Lavekar, the learned Counsel appears for the Respondent No.1-claimant, whereas Shri. Vijay Jatal holding for Shri. H.I. Pathan, the learned Counsel appears for the Respondent No.2 who is owner of the vehicle. The matter was adjourned to 17.08.2009 at the request of the respondent no.1 whereas, it was thereafter adjourned to 01.09.2009 at the request of the respondent no.2. Shri. H. I. Pathan, who filed leave note on 01.09.2009 and at his instant the matter was adjourned to 22.09.2009. Shri.Vijay Jatal, today also requests for grant of adjournment in the matter on the ground that, Shri. H.I. Pathan filed his leave note. However, the said request is rejected as the matter was once adjourned at the instance of Shri. H.I. Pathan. Repeated adjournments on the spacious plea of filing leave note is deprecated. 3. The matter is taken up for final disposal as per the order dated 08.06.2009. Admit. Heard the respective Counsels for concerned parties, who are present in this Court. 4. The main ground of challenge in the instant case is that, the Tribunal has not considered the stand of the appellant insurance company that there was breach of insurance policy. The learned Counsel appearing 3 for the appellant pointed out the paragraph no.24 of the written statement wherein a specific defence is raised that, the claimant was traveling as a gratuitous passenger in the Goods Carriage Vehicle and the risk was not covered by the insurance policy. He has further brought to my notice the insurance policy which shows the seating capacity of only one person. The Tribunal has however not considered this stand and passed the order holding that, the appellant insurance company is liable to pay compensation of Rs.25,000/- towards no fault liability. 5. The Apex Court has in its decision reported in AIR 2007 SUPREME COURT 2582(1) (Yallwwa and Ors V. National Insurance Co. Ltd., and Anr) has held that once the defence is raised about the breach of conditions of policy, the same is required to be decided by the Tribunal and section 140 of the Motor Vehicles Act, 1988 does not contemplate that the insurance company shall also be liable to deposit the amount while it has no fault whatsoever in terms of sub-section (2) of section 147 of the Act. In para no.19 of the said Judgment it has further been held that, even when objections are raised by the insurance company in regard to its liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be an award within the meaning of Section 173 of the Act. In view of this Judgment, the Tribunal ought to have considered the defence raised by the insurance company and should 4 have recorded its findings. The Tribunal, in my opinion, has failed to exercise its jurisdiction. In view of this, the instant appeal succeeds. 6. The instant appeal is allowed. The impugned order dated 05.01.2009 passed below Exhibit-5 in Motor Accident Claim Petition No. 34/2007 passed by the Motor Accident Claims Tribunal, Biloli is hereby quashed and set aside. The matter is remitted to the Motor Accident Claims Tribunal, Biloli for deciding application Exhibit-5 afresh, after taking in to consideration the defence raised by the insurance company. The appellant insurance company has deposited an amount of Rs.12,500/- in this Court on 24.03.2009. The same shall be immediately remitted to the Tribunal and the Tribunal shall pass appropriate orders after decision on the application Exhibit-5. It is further made clear that the Tribunal should not be influenced by any of the observations made in this order and the application Exhibit-5 shall be decided on its own merits. There shall be no order as to costs. (R.K. DESHPANDE) JUDGE GAS/fa970.09