1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.1235 OF 2009. The Oriental Insurance Company Ltd., Notice to be served on the Branch Manager, Dhule Branch, Dhule. APPELLANT (Orig. Respondent) VERSUS 1. Ramanbai Bhimsing Girase Age : 43 years, Occ : Householdwork, 2. Shankarsing Bhimsing Girase Age : 20 years, Occ : Education, 3. Pallavi Bhimsing Girase Aged : 13 years, Occ : Education, 4. Suwarnakala Bhimsing Girase Age : 11 years, Occ : Education, Nos.2 to 4 minors through guardian Mother petitioner no.1 All R/o War, Taluka and Dist.Dhule. Respondent Nos.1 to 4 are original petitioners/claimants. RESPONDENTS ------------------------------------------------------------------------------------------------------- Mr. A. A. Joshi, the Advocate for the appellant. Mr. A. R. Kawade holding for Shri. P.R. Patil, Advocate for Respondent No.1 ------------------------------------------------------------------------------------------------------ 2 (CORAM : R.K. DESHPANDE, J.) DATE : 10th September, 2009. ----------------------------------------------- ORAL JUDGMENT : This appeal challenges the Judgment and Award dated 09.11.2005 passed by the Member, Motor Accident Claims Tribunal, Dhule in M.A.C.P. No.379/2003. By this award, the appellant insurance company is held liable and responsible to pay an amount of Rs.50,000/- to the respondents-claimants towards compensation under section 140 of the Motor Vehicles Act, 1988 with interest at the rate of 9% p.a. thereon from the date of filing of the Claim Petition till its realisation. Hence this Appeal is preferred by the appellant-orig. Respondent No.1. 2. By an order dated 1st July, 2009, it was made clear to the parties that, the matter shall be heard finally at the stage of admission and for that purpose, the Record and Proceedings of the Tribunal were also called. On 13th August, 2009, the matter was adjourned at the request of the learned Counsel for the appellant to 9th September, 2009 by again putting the parties on notice that the matter shall be disposed off at the stage of admission itself. Accordingly, the matter is now taken up for final disposal with the consent of the parties. 3. Admit. 3 4. The Tribunal has recorded the findings that, the claim of the respondents-claimants under section 166 of the Motor Vehicle Act, 1988 is not tenable on the ground that, the policy in question was only a `Act policy' covering the third party risk and claim in the Petition was on the account of death of owner and driver of the vehicle i.e. motorcycle bearing No.MH-18/D-6815. It is also the findings recorded that no extra premium was paid to cover the risk of owner and driver of the vehicle. The Trial Court further recorded finding that when the claim does not stand in its inception then the claimants are not entitled to claim compensation under section 140 of the Motor Vehicles Act, 1988. However, surprisingly the Tribunal has held that taking in to consideration the spirit of the welfare legislation, the appellant insurance company is liable and responsible to pay an amount of Rs.50,000/- and this is subject matter of challenge in the instant Appeal. 5. I have gone through the Insurance cover note produced on record which clearly indicate that, it was merely an “Act Policy” and there was no extra premium paid to cover the risk of the owner of the vehicle. The learned Counsel for the appellant Shri. A. A. Joshi relied upon the Judgment of the Apex Court reported in 1998 ACJ 921 (National Insurance Co. Ltd., V/s Jethu Ram and others), in which it has been held 4 that, there is nothing contained under the provisions of Section 92-A and 92-B of the Motor Vehicles Act, 1939 which would suggest that the liability which accrues under the provisions of section 92-A has to be borne by the insurer, even if it is ultimately held that, under the policy of insurance the insurer is not liable to pay the compensation in question. The learned Counsel has further relied upon the decision of the Apex Court reported in AIR 2007 SC 2582 (Yallwwa & others V/s National Insurance Co. Ltd. & anr). The paras 9, 10 and 11 which are relied upon by the learned Counsel for the appellant are reproduced below :- “9. It is not in dispute that an award of the Tribunal is to be made in terms of section 168 of the Act. For the said purpose, the Tribunal is required to issue a notice to the insurer and give the parties an opportunity of being heard. While making an award in terms of Section 168 of the Act, the procedure laid down under Section 166 of the Act are required to be complied with. The proviso appended to Section 168 of the Act, however, lays down that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X of the Act. Section 140, as noticed herein-before, provides for no fault liability. It uses the words “accident arising out of the use of a motor vehicle,” the owner of the vehicle and when more than two vehicles are involved, “the owners of the vehicles” shall, jointly and severally, be liable to pay compensation. 10. The said provision, therefore, makes the owners of the vehicles liable but not the insurer per se. Irrespective of the fact whether a claim petition is required to be adjudicated 5 under Chapter X or Chapter XII of the Act, it is permissible to raise a defence in terms of sub-section (2) of Section 149 of the Act. Even it is possible for the owner of the vehicle to raise a contention that his vehicle being not involved in the accident, he is not liable to pay any amount in terms of Section 140 of the Act. 11. One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an 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.” It is thus apparent from the decision of the Apex Court that when there is breach of policy, the insurance company can not be foisted liability of compensation either under section 166 and 140 of the Motor Vehicle Act. 6. The learned Counsel for the Respondents-claimants relied upon the decision of the Apex Court reported in 1996 ACJ 555 (K. Nandakumar V/s Managing Director). It was the case of no fault liability and the Apex Court has held that, the question of negligence of the motorcyclist would not arise to deny the compensation. Hence the judgment is not at all applicable in the instant case. 7. In view of the above, the instant Appeal succeeds, same is 6 allowed and the Judgment and Award dated 9th November, 2005 passed by the Member, Motor Accident Claims Tribunal, Dhule in M.A.C.P. No. 379/2003 is hereby quashed and set aside and the Claim Petition No. 379/2003 filed by the respondents-claimant against the appellant Insurance company is hereby dismissed with no order as to cost. 8. The learned Counsel for the appellant has brought to the notice that an amount of Rs.63,882/- has been deposited by the appellant insurance company in this Court in Writ Petition No.3504/2006 which was earlier preferred challenging the award. However, the said Writ Petition was withdrawn with liberty to file the First Appeal. Consequently, the instant First Appeal has been filed. However, an amount of Rs.63,882/- deposited by the appellant-insurance company is lying in the fixed deposit as per the order passed in Writ Petition No.3504/2006. The office is therefore directed to return the said amount to the appellant-insurance company. (R. K. DESHPANDE ) JUDGE GAS/fa1235.09