1 IN THE HIGH COURT OF JUDICATUTRE AT BOMBAY, NAGPUR BENCH NAGPUR. CIVIL APPLICATION NO.1383 OF 2008 IN FIRST APPEAL NO.343/1997 (Decided) The New India Assurance Co.Ltd.. ..vs.. Rukasanabai and others. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- =- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 27th March, 2008. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.A.J.Pophaly Advocate for the appellant. Mr.Anil Mardikar, Adv. for respondents no.1 to 5 and 7 & 8. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ORAL ORDER: 1. This is an application filed by the respondents in this appeal i.e. original claimants. 2. The facts are as follows - The present applicants – claimants, who are respondents 2 in First Appeal No.343 of 1997 had filed a claim petition. An award was passed by the Tribunal in their favour. The said award was challenged by the original respondent no.2 – Insurance Company before this court. This court had allowed the appeal and had dismissed the claim as against the appellant – Insurance Company in First Appeal No.343 of 1997, on the ground that the deceased was travelling in the vehicle in breach of the condition of the policy. 3. It is the contention of the present applicant-claimants that although the Insurance Company can be exonerated still the position of law is that the Insurance Company is bound to first satisfy the award and it can recover the said amount from the owner of the vehicle. It is, therefore, prayed that the order dismissing the application against the Insurance Company be modified although Insurance Company can be exonerated for the breach of the condition of the policy. 4. I have heard the learned counsel for the appellant and the respondents in that appeal. 3 5. It appears that this court has found that the Insurance Company needs to be exonerated because of the fact that the deceased was found travelling in a goods vehicle in breach of the condition of the policy. In pursuance of that finding, this court dismissed the claim of the present applicants/respondents as against the Insurance Company. 6. The learned counsel for the claimants – applicants contended before me that the direction of this court was not in tune with the decision rendered by the Supreme Court in (2004)2 SCC 1 (National Insurance Co.Ltd. ..vs.. Baljit Kaur and others). The Supreme Court has observed as follows in the said judgment. “21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall 4 have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident in asmuch as can be resolved by the Tribunal in such a proceeding.” 5 In view of this ratio laid down by the Supreme Court in this decision, it is apparent that the Insurance Company though can be exonerated has to first satisfy the award and it has a right to recover the amount paid by it, to the claimants, from the owner of the vehicle, without filing a suit. In view of this decision, the order passed by this court will have to be modified to the extent that the appellant i.e. original respondent no.2 shall first satisfy the award and it may recover the amount from the owner of the vehicle as directed by the Supreme Court in the case cited supra. The order is modified to that extent. JUDGE. chute