1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.178 OF 2007 M/s.New India Assurance Co.Ltd., having its Regd. And Head Office at New India Assurance Building, 87 M.G.Road Fort, Mumbai-411001, Br.Chandra Nagar, Opp.Shahu College, Latur Dist. Latur, Divisional Office at Adalat Road, Aurangabad through its, Dy.Manager and Constituted Attorney, Mr.Suhas Purshottam Puranik PETITIONER VERSUS 1. Rehnan Amanulkla Pethan, Age-43 years, Occu-Before Accident Business, At Present;NIL, R/o.Prakash Nagar, Latur, Dist. Latur 2. Dilawar Singh S/o.Mangat Ram, (Dismised) Age-Major, Occu-Business, C/o.S.N.Hans Raj Sharma, 145, Harinagar, Asaram, New Delhi, Dist. Delhi 110014 Owner of truck No.HR-45-1321 3. Venkat S/o.Gururam Chopane, (Died) Age-Major, Occu-Business, R/o.Patel Chowk, Mali Galli, Latur, Tq. And Dist. Latur, (Owner of Tata Sumo No.MH-24-C-3212) Through Lrs. Smt.Punchphula W/o.Venkat Chopane, 2 Age-35 years, Occu-Household, R/o. As above. 4. National Insurance Co.Ltd., Through its Branch Manager Hanuman Chowk, Main Road, Latur (Cover Note No.931371 validity period 3.3.2004 to 2.3.2005) RESPONDENTS CRIMINAL REVISION APPLICATION NO.179 OF 2007 M/s.New India Assurance Co.Ltd., having its Regd. And Head Office at New India Assurance Building, 87 M.G.Road Fort, Mumbai-411001, Br.Chandra Nagar, Opp.Shahu College, Latur Dist. Latur, Divisional Office at Adalat Road, Aurangabad through its, Dy.Manager and Constituted Attorney, Mr.Suhas Purshottam Puranik PETITIONER VERSUS 1. Rajiyabee Noorkhan Pathan Age-45 years, Occu-Before Accident Business, At Present;NIL, R/o.Prakash Nagar, Latur, Dist. Latur 2. Dilawar Singh S/o.Mangat Ram, (Dismised) Age-Major, Occu-Business, C/o.S.N.Hans Raj Sharma, 145, Harinagar, Asaram, New Delhi, Dist. Delhi 110014 Owner of truck No.HR-45-1321 3. Venkat S/o.Gururam Chopane, (Died) 3 Age-Major, Occu-Business, R/o.Patel Chowk, Mali Galli, Latur, Tq. And Dist. Latur, (Owner of Tata Sumo No.MH-24-C-3212) Through Lrs. Smt.Punchphula W/o.Venkat Chopane, Age-35 years, Occu-Household, R/o. As above. 4. National Insurance Co.Ltd., Through its Branch Manager Hanuman Chowk, Main Road, Latur (Cover Note No.931371 validity period 3.3.2004 to 2.3.2005) RESPONDENTS CRIMINAL REVISION APPLICATION NO.180 OF 2007 M/s.New India Assurance Co.Ltd., having its Regd. And Head Office at New India Assurance Building, 87 M.G.Road Fort, Mumbai-411001, Br.Chandra Nagar, Opp.Shahu College, Latur Dist. Latur, Divisional Office at Adalat Road, Aurangabad through its, Dy.Manager and Constituted Attorney, Mr.Suhas Purshottam Puranik PETITIONER VERSUS 1. Muzmilbee Musa Shaikh, Age-40 years, Occu-Before Accident Labourer, At Present : NIL, R/o.Prakash Nagar, Latur, Dist. Latur 2. Dilawar Singh S/o.Mangat Ram, (Dismised) Age-Major, Occu-Business, 4 C/o.S.N.Hans Raj Sharma, 145, Harinagar, Asaram, New Delhi, Dist. Delhi 110014 Owner of truck No.HR-45-1321 3. Venkat S/o.Gururam Chopane, (Died) Age-Major, Occu-Business, R/o.Patel Chowk, Mali Galli, Latur, Tq. And Dist. Latur, (Owner of Tata Sumo No.MH-24-C-3212) Through LRs. Smt.Punchphula W/o.Venkat Chopane, Age-35 years, Occu-Household, R/o. As above. 4. National Insurance Co.Ltd., Through its Branch Manager Hanuman Chowk, Main Road, Latur (Cover Note No.931371 validity period 3.3.2004 to 2.3.2005) RESPONDENTS CRIMINAL REVISION APPLICATION NO.181 OF 2007 M/s.New India Assurance Co.Ltd., having its Regd. And Head Office at New India Assurance Building, 87 M.G.Road Fort, Mumbai-411001, Br.Chandra Nagar, Opp.Shahu College, Latur Dist. Latur, Divisional Office at Adalat Road, Aurangabad through its, Dy.Manager and Constituted Attorney, Mr.Suhas Purshottam Puranik PETITIONER VERSUS 1. Sultana Mustak Shaikh Age-35 years, Occu-Before Accident 5 Business, At Present : NIL, R/o.Prakash Nagar, Latur, Dist. Latur 2. Dilawar Singh S/o.Mangat Ram, (Dismised) Age-Major, Occu-Business, C/o.S.N.Hans Raj Sharma, 145, Harinagar, Asaram, New Delhi, Dist. Delhi 110014 Owner of truck No.HR-45-1321 3. Venkat S/o.Gururam Chopane, (Died) Age-Major, Occu-Business, R/o.Patel Chowk, Mali Galli, Latur, Tq. And Dist. Latur, (Owner of Tata Sumo No.MH-24-C-3212) Through LR’s Smt.Punchphula W/o.Venkat Chopane, Age-35 years, Occu-Household, R/o. As above. 4. National Insurance Co.Ltd., Through its Branch Manager Hanuman Chowk, Main Road, Latur (Cover Note No.931371 validity period 3.3.2004 to 2.3.2005) RESPONDENTS Mr.V.N.Upadhya, learned counsel for petitioner in all applications. Mr.S.P.Chapalgaonkar, learned counsel for respondent no.4 in all the applications. Vide order dtd.21/01/2010, the petition is dismissed against respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 26/03/2010 6 ORAL JUDGMENT : 1. These civil revision applications are arises out of the judgment and orders passed in Motor Accident Claim Petition No.26/05, 28/2005, 30/2005, and 27/2005, by the Motor Accident Claim Tribunal, Latur, in which claims of first respondent in each of the motor accident claim petition were allowed to the extent of Rs.5,000/- each. The present petitioner in the revision applications was directed to pay the compensation amount to the respective claimant (first respondent in each of the revision application), and then may recover the same from the insured. 2. The claimant/the first respondent, in all these revision applications not appeared before this court, even though they were duly served. The revision application against the insured’s, the second respondent were dismissed as no steps were taken by the applicant against them. Only the Insurance Company of the another vehicle i.e. respondent no.4 involved in the said accident appeared in these revision applications. 3. As the common question involves in all these revisions that “whether the tribunal can direct the insurer to pay the amount of compensation for which it is exonerated from the liability in view of the fundamental breach of the policy conditions and direct that it may subsequently recover from the insured?”. Hence all these revisions to be disposed of by one common judgment. 7 4. Rule. 5. Rule made returnable forthwith. Heard finally at the stage of admission by consent. 6. Relying on the observations in the matter of New India Insurance Company Ltd., Bhopal Vs. Smt.Rafika Sultana, reported in AIR 2001, Madhya Pradesh, 116, it is urged by the counsel for 4th respondent that the revision is not maintainable u/s. 115 of The C.P.C. This issue is already decided by the Division Bench of this Court in LPA No.18/2002, vide judgment dated 18/03/2009, wherein it is observed that in the matter of Sadhana Lodh Vs. National Insurance Company Ltd., and others ([2003] 3 SCC, 524) and in the matter of National Insurance Company Ltd., Vs. Shrikant and others (reported in 2007, ACJ 280), while answering the question of Law, it is held that, “in case of remedy of appeal is not available u/s. 173(2) of The Motor Vehicle Act, 1988, the aggrieved party has a remedy to file a revision u/s. 115 of C.P.C.”. Thus as the legal position is settled on this point, it is to be held that these revisions are maintainable u/s. 115 of The C.P.C. 7. On facts, it is not under dispute that in the morning of 12/04/2004, at about 8.30 a.m., or so, a Tempo Sumo Jeep No.MH-24/C-3212, while passing village Sesai, situated on A.B.Road, Dist. Shivpuri (MP), colluded with one truck bearing no. HR-45/1321. 8 During the said accident, some persons expired as well as some were injured. The injured as well the dependents of the persons expired in the said accident, have filed number of claim petitions before the Motor Accident Claim Tribunal. The said truck was insured with the applicant petitioner, Insurance Company. In the written statement filed before the Accident Claim Tribunal, specific plea/defence was taken by the petitioner that at the relevant time of accident, the driver of the insured truck was not holding valid driving license and the driving license produced before the Tribunal is fake and bogus driving license. In the premise, it is alleged that as there is breach of the terms of Insurance Policy, the petitioner Insurance Company is not liable to pay the compensation. 8. From perusal of the impugned judgment and order passed in the Motor Accident Claim Petitions, the Claim Tribunal in all these petitions, framed a specific issue, which is issue no.4, about the breach of terms of the Insurance Policy by the insured and specific finding was recorded on that issue that the license of the driver, driving the truck insured with the petitioner, was a fake and bogus license and it is in breach of the terms and conditions of the Insurance Policy. Inspite of that, directed the petitioner, initially to pay the amount of compensation to the injured with further directions to recover the same from the insured. Hence, the petitioner is before this Court. 9. It is observed by this Bench in the matter of United India 9 Insurance Co.Ltd. Vs. Anubai Gopichand Thakar and others, while deciding groups of first appeals no.826 to 839/2006, reported in 2008(1) Mh.L.J. 73) that - The direction given by the Supreme Court in exercise of extra ordinary jurisdiction for doing complete justice to the parties in, 2007 AIR SCW 3734 and 2004 ACJ 428 can not be construed as ratio laid down in this behalf. The same powers, which are available to the Apex Court under Article 136 and under Article 142 of the Constitution, are not available to the Tribunal or High Court. The Apex Court did not, however, lay down that in all such cases, the insurer shall first be liable to pay and then recover it from the insured. The purposive interpretation of section 168 of The Motor Vehicles Act would make it manifest that the provisions relates to power of the Tribunal to determine the question of justness of the award and quantum of compensation. It may be said that section 168 is enabling provision but it does not empower the Tribunal to issue direction to the insurer to pay the amount of compensation, though a finding is reached that the insurer is not liable to pay such amount on account of fundamental breach of the terms of insurance policy. Considering all the relevant aspects of the matter and having regard to the case law the directions given by the Tribunal in the bunch of present appeals are held to be 10 incorrect, improper and illegal. The impugned order is, therefore, unsustainable. 10. It is observed in the matter of United Insurance Company Ltd., Vs. A.N. Subbulakshmi and others, reported in 2008(6) All MR 926, that the directions of the High Court to the insurer to pay the entire amount to the claimant and then to recover the excess paid from the lorry owner is not warranted and unsustainable. These observations are based on the earlier rulling in the matter of New India Insurance Company Ltd., Vs. C.M. Jaya, 2002(1) All M.R. 930 (SC) . It is also observed in the matter of Oriental Insurance Co. Ltd., Vs. Smt.Rajkumari and others, reported in 2007 AIR SCW 7149, wherein it is observed that the insurer can not be directed to pay the amount of compensation and subsequently to recover excess paid from the insurer. 11. From the facts before the Learned Motor Accident Claim Tribunal and particularly the conclusion drawn by the Motor Accident Claim Tribunal, while recording the finding on issue no.4 in each of the claim petition, have specifically observed that the driving license of the driver, driving the truck was proved to be fake and this is a fundamental breach of the terms of the insurance policy of the truck insured with the petitioner company, then in law, the insurance company is not liable to pay the amount of compensation. But inspite of that, the directions were given by the Motor Accident Claim 11 Tribunal to this petitioner to pay the amount of compensation to the claimant/first respondent in all the revisions and then may recover the same from the owner of the insured vehicle, is against the provisions of law. 12. In the premise, to that extent, the order passed by the Motor Accident Claim Tribunal in 26/2005, 28/2005, 30/2005, and 27/2005, required to be quashed and set aside and accordingly the order is quashed and set aside. Accordingly all these revision applications succeed in terms of prayers in para no.12(iii) of all the revision applications. 13. Rule thus made absolute. 14. All the revision applications stand disposed of as indicated above with no order as to costs. (A.V.POTDAR, J.) khs/MAR 2010/cra-178-07