1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1 OF 2009. with CIVIL APPLICATION NO.80/2009. The New India Assurance Company Ltd. having its Divisional office at Adalat Road, Aurangabad. - APPELLANT VERSUS 1) Rashidabi Shaikh Rashid and othes. - RESPONDENTS ***** Mr.Ajit Kadethankar,Advocate for Appellant; Mr.PS Dighe, Advocate for Resp.Nos.1 to 4. ----- CORAM : K.U.CHANDIWAL, J. DATE : 30th March, 2010. PER COURT : 1) Heard finally. 2) The record produced by the appellant/insurance company before the learned Judge of Motor Accident Claims Tribunal, Jalgaon in M.A.C. Petition No.239/2003, demonstrated that the policy could not exceed beyond Rs.50,000/- and the travel by the passengers was not covered 2 under the policy and such travel, being in breach of policy, the insurance Company washed its hands for meeting other amount of the claim. 3) The learned Judge accepted this position and fixed the liability of insurance company to the extent of Rs.50,000/-. However, he directed the Insurance company to pay the total award amount of Rs.2,59,100/- satisfy the same and then recover it from owner of the vehicle, i.e. Respondent No.1 with a permission, no requirement of filing a separate suit. This direction of the learned Judge of the MACT, is questioned by the insurance company in the First Appeal. 4) Mr.Dighe Counsel representing the claimants demonstrates that there is no error in such direction being issued by the learned Judge as it speaks in tune to the verdict of the Apex Court. To stress his point, reliance, to the Judgment in the matter of New India Assurance Company Ltd. Vs. Kusum and Ors. (2009) 8 SCC 377 was accelerated. The Apex Court in the said judgment came across with several cases, where “ first pay and then recover “ directions being given by the learned Members of MACT, it however did not thereafter allow the insurance company to make application in disposed of proceedings and directed the insurance companies to prosecute for 3 their remedies by independent suits for recovery. It was in this scenario, the order and direction in the Matter of Kusum (cited supra) came to be issued by the Apex Court. 5) The earlier such directions by the Apex Court, as could be seen in the matter of National Insurance Company Ltd. Vs. Kusum Rai (2006) 4 SCC 250); or Oriental Insurance Company Ltd. Vs. Zaharulnisha (2008) 12 SCC 385); or Deddappa Vs. National Insurance Co.Ltd. (2008) 2 SCC 595), will not be allowed to be coined with same speed, as the very orders demonstrated, were under the extraordinary jurisdiction of the Apex Court in terms of Article 142 of the Constitution of India. The discretion, as sought in the present case to have been allowed to be continued by the learned Judge, is certainly beyond the scheme of the Motor Vehicles and also it is foreign to the system. Basically Claims Tribunal, having reached to the conclusion of no liability under the law, enforceable against the insurance company, there being no contract to indemnify, the directions “first pay and then recover” are in spite of legal demur and naturally warrant interference. The insurance company, in the situation, cannot be expected to be a facade/fidget to wait and face the consequence. 4 6) The objection raised by the insurance company is justified, the directions issued by the learned Judge need interference, it is set aside. Rest part of the judgment under challenge to remain unaltered. The amount deposited by the insurance company in this Court be remitted to the appellant/insurance company on accounts. CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/fa1.09