1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 103 OF 2009 Oriental Insurance Co. Ltd. - - Appellant Versus 1. Digamber Ramchandra Kondawar and others - - Respondents Shri Dhananjay Deshpande, Advocate for the Appellant. CORAM : K. U. CHANDIWAL, J. DATE : 16TH JUNE, 2009. PER COURT : 1. Heard learned counsel for the appellant insurance company. Respondents No. 1 and 2 served, however no participation. 2. On 16.12.2005 in an accident the claimant sustained injuries by impact of motor cycle which was insured with the appellant insurance company, as the injured was moving on the cycle. The claimant asserted, nature of injuries was such that it did not allow permanently to pursue his routine. The insurance company denied its liability on the ground that there was breach of policy in terms of condition as regards the driving 2 license of the rider of the motorcycle. 3. Learned Member/Ad-hoc District Judge - I Nanded by order dated 19.08.2008 directed the insurance company to pay the amount of Rs. 98,599/- to the petitioner with interest @ Rs. 9%, deducting from the said claim Rs. 25,000/- under no fault liability. However, in the operative part clause IV the learned judge has allowed the insurance company/appellant to recover the amount of compensation paid to the claimant from original respondent No. 1 in the same execution proceeding. 4. It is this order of the learned Judge which is assailed by the appellant/insurance company. 5. The factual matrix of the matter illustrates, the learned Judge also agreed that there is breach of term of insurance policy as license conditions are also not followed in its letter and spirit. The learned judge has taken recourse to a judgment of Apex Court in National Insurance Company Vs. Swarn Singh and others 2004 ACJ 1 Supreme Court, as directed payment of such compensation by insurance company and its empowerment to recover it from owner or the driver of the vehicle. 6. Taking recourse to the said judgment apparently was not in tune with the facts as highlighted therein. The law on the point is settled 3 in 2008 (6) All MR page 926 in the matter of United Indian Insurance Co. Ltd. Vs. A. N. Subbulakshim and others, wherein, the directions given in the matter of National Insurance Company Vs. Swarn Singh were treated to be the directions in exercise of ordinary jurisdiction of the Apex Court and could not have been treated as binding precedent. The Hon'ble Lordships of the Apex Court do not approve directing the insurance company to make the payment to the claimant and then recover excess paid from the lorry owner. This aspect cannot be obliterated. 7. The directions to the insurance company to make the payment and then to recover is set aside. The amount so far deposited and recovered by the claimant shall have consequence of recovering the same by insurance company/appellant by due process of Law. However for the residue the order shall not be implemented against the appellant/insurance company. The appeal is allowed in above terms. [ K. U. CHANDIWAL ] JUDGE bsb/June 09/FA 103.09