1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 8. FA/1507/2009 with CA/6315/2009 In FA/1507/2009 With CA/9669/2009 In FA/1507/2009 9. FA/1509/2009 With CA/6299/2009 In FA/1509/2009 With CA/9670/2009 In FA/1509/2009 10. FA/1510/2009 With CA/6295/2009 In FA/1510/2009 With CA/9668/2009 In FA/1510/2009 11. FA/1512/2009 With CA/6293/2009 In FA/1512/2009 With CA/9671/2009 In FA/1512/2009 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders 2 Mr.S.M.Godsay, Counsel for the appellant, in the appeals. Mr. H.I.Pathan, Counsel, and Mr.S.N.Lovekar, Counsel, for respective respondents in the appeals. ... CORAM: K.U.CHANDIWAL, J. DATE:11/1/2010 P.C.:- 1. Heard the respective Counsel for the Insurance Company and the claimants/respondents. 2. The short point involved in the matter is whether the appellant Insurance Company, since exonerated from the liability by the learned Member, Motor Accident Claims Tribunal, could be fastened with the liability first to make payment and then recover. 3. The insurance policy, subject matter of controversy, is placed at Exh.39 before the learned Member, Motor Accident Claims Tribunal, Nanded. The insurance policy, in no uncertain terms, indicates that the vehicle 3 was insured for a private user and it could not have been used as a public transport vehicle. The risk in the insurance policy is restricted to the extent of driver and it is a third party policy and will not, in the situation, bring within its ambit the other passengers traveling in the vehicle Tata Sumo, though the sitting capacity of Tata Sumo is - 9 + 1. The learned Judge has also recorded that the passengers were gratuitous passengers, which was in terms of the breach of the insurance policy. 4. The learned Judge could not have fixed the liability to the appellant Insurance Company to make the payment and then to recover as there is no contract between the appellant Insurance Company with the insured, to remit the amount or get it back. Since there was obvious breach of Insurance terms, the learned Judge erred in law in directing the appellant/original respondent no.2 to make payment of compensation 4 amount first to the petitioner and, thereafter, to recover the same from the respective respondent no.1 ( in original petitions). The law is well settled. The situation has even been considered by Brother Judge in the matter of United India Insurance Co.Ltd. Vs. Anubai Gopichand Thakare and others ( 2008(1) Mh.L.J. 73) and the said view has been confirmed by the Division Bench of this Court. 5. Taking survey of the evidence adduced, particularly, the insurance policy, the learned Judge was certainly wrong in directing the appellant Insurance Company to make the payment and then to recover. To this extent, the respective appeals succeed and are allowed, no other change. No costs. 6. The amount deposited in this Court by the appellant Insurance Company, if not yet withdrawn by the respective claimants, be returned/refunded as per the Rules 5 to the appellant Insurance Company. Respective applications disposed of. (K.U.CHANDIWAL) JUDGE ... agp/1507-09fa