1 FARHAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FA/4030/2008 WITH FA/4032/2008 WITH FA/4033/2008 WITH FA/4034/2008 WITH FA/4035/2008 WITH FA/4036/2008 WITH FA/4037/2008 WITH FA/4038/2008 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. D.S. Kulkarni, Adocate h/f. Mr. S.L. Kulkarni, Advocate for appellant. Mr. A.S. Shelke, Advocate for respondent No. 2. Mr. N.K. Kakade, Advocate for respondent No. 2. CORAM: K.U. CHANDIWAL J. DATED: 4th May, 2010. P.C.: 1. Heard Mr. Kulkarni, Mr. Shelke and Mr. Kakade for respective parties. The directions by the Member, Motor Accident Claims Tribunal, Jalna to the Insurance Company to first pay the amount to the claimants with a security from the owner and then to recover the amount, by filing execution proceeding in the same petition, is questioned in the group of matters by the Insurance Company. 2. The factual matrix illustrate, in a goods vehicle 15 gratuitous persons were travelling. The vehicle suffered accident. The claimants lodged different claims. The learned Judge found their entitlement based on the injuries suffered by them in tune with the loss of income. The only question 2 that has been posed by the Insurance Company is, rather rightly, when the learned Judge could evaluate the evidence and find that there being a flagrant breach of policy of insurance, the liability could not have been fasten to indemnify owner of the vehicle. This position having been accepted, the learned Judge could not have exercised the discretion as has been done. 3. Mr. Shelke, during the course of submission, pointed out, in identically placed matters, the Apex Court by an order dated 31.8.2009 in the matter of National Insurance Co. Ltd. v. Parvathneni and another, 2009 DGLS (Soft.) 1102 has referred the controversy to a larger bench, by posing following questions in para No. 9 thereof, which are as under :- "9. Hence, we direct that the papers of this case be placed before Hon'ble the Chief Justice of India for constituting a larger bench to decide the following questions : "(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle. (2) Can such a direction be given under article 142 of the Constitution, and what is the scope of Article 142 ? Does Article 142 permit the Court to create a liability where there is none ?" 4. In the light of the matter being pending before the larger bench, indeed the appeals can be either kept in abeyance or can be disposed of. The disposal of it warrants as 3 during the course of submission Mr. Shelke informs that the respective claimants have received the amount under award in terms of order passed by the learned Chairman, M.A.C.T., Jalna dated 10.7.2008 and requisite surety was also furnished for releasing the amount. In the light of this eventuality, having surfaced, the remedies now left to the appellant/Insurance Company is to recover the amount in the manner indicated by the learned Chairman in the operative part of the order. For this purpose, the appeals indeed become infructuous and are disposed of. No costs. [ K.U. CHANDIWAL J.] ssc/fa4030.08