IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.813 OF 2009 United India Insurance Co. Ltd., Through its Divisional Manager, Divisional Office, New Osmanpura, Aurangabad. APPELLANT VERSUS 1. Syed Muhammad S/o Syed Zhuruddin Age : 40 years, Occ : Nil, Handicapped C/o Satephal, Tq. Ambajogai, Dist. Beed. 2. Ummehanni widow of Shaikh Raheem Age : 35 years, Occ : Household, R/o Satephal, Tq. Ambajogai, Dist. Beed. 3. Zoharabee S/o Syed Muhammad Age : 19 years, Occ : Nil, handicapped R/o Satephal, Tq. Ambajogai, Dist. Beed. 4. Pravin S/o Ravikant Akkangire Age : 25 years, Occ : Agriculture and trade, R/o Ranapr, Tq. & Dist. Latur. 5. Janardhan S/o Tukaram Thermete Age : Major, Occ : Agri., & Trade, R/o Mamdapur, Tq. & Dist. Latur. RESPONDENTS ------------------------------------------------------------------------------------------------------- Mr. S. V. Kulkarni, Advocate for the applicant. Mr. V. M. Chate, Advocate for Respondent Nos.1 to 3. Mr. N. D. Kendre, Advocate for the Respondent Nos.4 and 5. ------------------------------------------------------------------------------------------------------ (CORAM : R. K. DESHPANDE, J.) DATE : 2nd September, 2009. ----------------------------------------------- ORAL JUDGMENT : By an order dated 30.04.2009 passed by this Court, the parties were put on notice that, the instant Appeal shall be finally disposed of at the stage of admission and for that purpose the Record and Proceedings of the Tribunal were also called. The matter is accordingly listed today for admission. Shri. S. V. Kulkarni appears for the appellant, Shri. V. M. Chate appears for the Respondent Nos.1 to 3 and Shri. N. D. Kendre appears for the Respondent Nos.4 and 5. Admit. By consent of parties the matter is heard finally. 2. This appeal challenges the judgment and award dated 26.05.2008 passed by the Motor Accident Claims Tribunal, Ambajogai, Dist. Beed in Motor Accident Claim Petition No.142/2007. By this award, the driver and owner of Hero Honda motorcycle No.MH-24-Q-974 are held liable jointly and severally to pay compensation of Rs.62,000/- inclusive of no fault liability of Rs.50,000/- to the Respondent Nos.1, 2 and 3-claimants along with interest at the rate of 6% p.a. from the date of application i.e. 03.11.2007 till its realisation. The Application has been dismissed against the appellant Insurance Company, however further direction is issued to the appellant Insurance Company to satisfy the award first and then recover the amount of compensation with interest and proportionate costs from the driver and the owner namely the Respondent Nos.4 and 5 herein jointly and severally by executing the award without filing separate suit. The Insurance Company being aggrieved by the such direction has approached this Court by filing instant Appeal. The brief facts leading to the present case are as under. 3. The Respondent Nos.1 to 3 are the original claimants who filed the Motor Accident Claim Petition No.124/2007 before the Motor Accident Claims Tribunal at Ambajogai, Dist. Beed alleging therein that, on 13.08.2007, the Respondent No.4 Pravin was driving motorcycle in rash and negligent manner and gave dash to Syed Zahuruddin who sustained serious injuries on head, leg and other parts of the body and died in the hospital during the course of medical treatment on 14.08.2007. The Respondent No.5 Janardhan is the owner of the said vehicle. Hence the Respondent Nos.4 and 5 herein were joined in the Claim Petition as the Respondent Nos.1 and 2. It was further alleged that, the said vehicle was insured with the appellant Insurance company and hence the appellant was also joined as Respondent No.3 in the said claim petition. 4. The dispute in the present Appeal pertains to the liability of the Insurance Company only. The learned Member of the Tribunal has recorded specific findings that, the Respondent No.4, who was driving the motorcycle, had admitted in his cross examination that, on 13.08.2007 i.e. the date on which the accident occurred, he had no driving licence either Learner's or permanent, to drive the said motorcycle. It was further held that, the Respondent No.4 owner of the vehicle was sitting with the Respondent No.4 on the vehicle as pillion rider. The Tribunal has further held that, the Respondent No.5 Janardhan has permitted the Respondent No.4 Pravin to drive the said motorcycle without having any valid, effective Learners or permanent driving licence which is a breach of fundamental nature. After recording this findings in favour of the Insurance Company, the Claim Petition against the appellant Insurance Company was also dismissed. However, relying upon the Judgment of the Apex Court reported in (2004) 3 SCC 297 in National Insurance Company Ltd. V/s Swaran Singh and others it was held that, under the provisions of section 149(5) of the said Act the Insurer has to satisfy the decree i.e. award of the compensation at the first instant and to recover the same from the owner. The learned Member of the Tribunal has passed the operative order as under :- “1. Application is allowed partly. 2. The respondent nos.1 and 2 shall pay compensation of Rs. 62,000/- (Rs. Sixty two thousand only) including the compensation of no fault liability of Rs.50,000/- under section 140 of the M.V. Act with simple interest at the rate of 6% per annum from the date of the application 3.11.2007 till the full realisation jointly and severally to the claimants. 3. The respondent nos.1 and 2 shall pay proportionate costs of the application jointly and severally to the claimants. 4. Award be drawn up accordingly. 5. The application is dismissed against the respondent no.3 United Assurance Company Ltd. 6. Respondent no.3 United Assurance Company Ltd., shall satisfy the award first and recover the amount of compensation with interest and proportionate costs from the driver and the owner respondent nos.1 and 2 jointly and severally by executing the award without filing separate suit. 5. The question involved in this case is whether, the Tribunal having dismissed the Claim Petition against the appellant Insurance Company, can direct the appellant Insurance Company to satisfy the award first and recover the amount of compensation with interest and proportionate cost from the driver and owner of the vehicle. The question is no more res integra in view of the decision given by the learned Single Judge of this Hon'ble Court which is reported in 2008(1) Mh. L.J. 73 United India Insurance Company Ltd., V/s Anubai Gopichand Thakare. Following this Judgment I have held in First Appeal No.1043/2009 United India Insurance Company Ltd., V/s Sau. Aruna decided on 20th August, 2009 that, when the specific finding is recorded by the Tribunal that, there was breach of conditions of the policy and the defence taken by the Insurance Company under section 149(2) of the Motor Vehicles Act, 1988 is accepted, then it gives no jurisdiction to the Tribunal under section 168 of the Motor Vehicles Act, 1988 to pass the order holding the Insurance Company either jointly or severally liable for payment of compensation. If the Tribunal has no jurisdiction to hold the Insurance company liable either jointly or severally to pay compensation, then passing any order by the Tribunal, directing the Insurance Company to first satisfy the award and to recover the amount of compensation with interest and proportionate costs from the driver and owner of the vehicle is also without jurisdiction. 6. The learned Member of the Tribunal has relied upon the decision of the Apex Court in Swaran Singh case cited supra. The learned Counsel for the claimants invited my attention to para No.84 of the said Judgment wherein it has been held that, where disputed questions of facts arise as to whether, the driver has valid licence or whether, the owner of the vehicle committed breach of terms of contract of the Insurance, as also the provisions of Act by consciously allowing any person to drive the vehicle who did not have a valid driving licence, it has been held that the Insurance Company may be entitled to recover the amount paid under the contract of Insurance on behalf of the insured and can have recourse to the remedy before regular court against the insured. In the instant case, the Respondent No.4 has admitted in clear and valid terms that he was not possessing the valid and effective license on the date of occurrence of accident and there was no dispute on question whether, there is any breach of condition of the policy or not ? Hence the said decision of the Apex Court is not applicable to the facts of the present case. 7. In the result, the Appeal is allowed and the Judgment and award dated 26.06.2008 passed by the Motor Accident Claims Tribunal, Ambajogai, Dist. Beed in Motor Accident Claim Petition No.142/2007 to the extent it directs the appellant Insurance Company to satisfy the award first and then recover the amount of compensation with interest and proportionate costs from the driver and the owner respondent nos.1 and 2 jointly and severally by executing the award without filing separate suit, is quashed and set aside. Rest of the order passed by the Tribunal, is maintained. The office is directed to refund the amount of Rs.25,000/- already deposited in this Court on 08.10.2008 towards statutory deposit and also an amount of Rs.6,000/- deposited on 27.11.2008 to the appellant Insurance Company. There shall be no order as to costs. (R.K. DESHPANDE) JUDGE GAS/fa813.09