THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR M.A.C.M.A.No. 734 of 2008 JUDGEMENT: This appeal is filed by the Insurance Company who is the 2nd respondent in O.P.No. 266 of 2005 on the file of the Motor Accidents Claims Tribunal-cum-the Principal District Judge, Medak at Sangareddy. The appellant obtained leave of the Tribunal below under Section 170 of the Motor Vehicles Act vide orders in I.A.No. 2174 of 2006 dt. 19.9.2006, as per the statement made in the memorandum of appeal. The claim petition was filed by the respondents 1 to 6 claiming compensation of Rs. 3,00,000/- on account of the death of Ramavath Poliya Poolsingh in a motor accident. The deceased was the husband of claimant No.1 and son of claimants 2 and 3 and father of claimants 4 to 6. On 28.11.2002 while the deceased was riding a bicycle he was hit by an Auto bearing No. AP 23 B 1886 which was being driven in rash and negligent manner. The police Papannapet registered a case in Cr.No. 57 of 2002 against the owner and driver of the vehicle. The owner of the vehicle was impleaded as 1st respondent and the insurance company was impleaded as 2nd respondent in the O.P. The insurance company resisted the claim on the ground that the deceased himself was riding the bicycle in negligent manner without observing the traffic rules and contributed to the accident. It was also pleaded that the claimants are not entitled to claim compensation from the insurance company, as there is collusion with the 1st respondent. The Tribunal framed two issues and on 1st issue found that the accident was on account of the rash and negligent driving of the said offending vehicle. On issue No.2 i.e. with regard to claim and liability, the Tribunal assessed the earnings of the deceased at a minimum of Rs. 100/- per day. The Tribunal below holding that the claimants had failed to establish the earnings of the deceased at Rs. 5,000/- to 6,000/- p.m. as claimed by them and taking the age of the deceased as 30 years and applying the multiplier 16.52 as per the decision in Bagwan Das vs. Mohd Arif[1] assessed the total loss of dependency at Rs. 3,84,000/- and after deducting 1/3rd of the earnings towards personal expenses of the deceased, awarded compensation of Rs. 3,00,000/-. So far as the liability of the insurance company is concerned, the Tribunal below basing on the evidence of Rw.2 came to the conclusion that the driver of the offending vehicle was having license to drive Light Motor Vehicle but was not authorized or licensed to drive an Auto Rickshaw and held that the conditions of Ex:B.6 insurance policy were violated and therefore the insurance company is not liable to pay any compensation. However, the Tribunal below instead of absolving the appellant/insurance company, following the decision of the Supreme Court in New India Assurance Company Limited vs. Kamala[2] held that though the insurance company is not statutorily liable on account of violation of terms and conditions of the policy, it has to pay the compensation to third parties and recover the same from the insured vehicle owner. The Tribunal below accordingly held that the 1st and 2nd respondents are jointly and severally liable to pay the compensation while granting liberty to the appellant to recover the compensation excluding the amount paid under Section 140 of the M.V. Act from the 1st respondent owner. Aggrieved by the said Award, the present appeal is preferred. The learned Counsel for the appellant contended that the insurance company having been held not liable to pay compensation on account of violation of terms of the policy, a direction in that regard to pay compensation and recover the same from the owner of the vehicle ought not to have been granted. In support of his contention, the learned Counsel for the appellant places reliance upon a latest decision of the Supreme Court in National Insurance Company Limited vs. Parvathaneni[3]. The learned Counsel for the appellant further contended that the assessment of earnings of the deceased is purely on the basis of guess work as recorded by the Tribunal in para 7 of the impugned award since there is no evidence to show the earnings of the deceased as assessed by the Tribunal below, the compensation awarded by the Tribunal is on higher side. So far as the first contention is concerned, it is no doubt true that in the aforesaid decision, the Supreme Court has doubted the legality and correctness of directions of this nature where the insurance company was directed to pay and recover. However, keeping the several earlier decisions of the Supreme Court, the matter was referred for consideration to a Larger Bench and the said consideration is still awaited. However, since there are more than one decision of the Supreme Court holding that the insurance company must pay and later recover it from the owner without having the necessity of initiating separate proceedings for recovery of the amount from the owner in execution proceedings and as per the extant legal position as it stands today, the direction of the Tribunal below to the appellant to pay and then recover from the owner is consistent with several decisions and needs no interference in this appeal. So as the quantum of compensation awarded basing on the assessment of the earnings of the deceased is concerned, it is to be noted that though the claimants have claimed that the deceased was earning Rs. 5,000/- to 6,000/- per month, in the absence of any evidence in support thereof, the Tribunal has taken the earnings of the deceased at a minimum of Rs. 100/- per day and based on that has assessed the dependency. Since the earnings of the deceased is less than Rs. 40,000/- in a year and since the quantum of compensation as assessed by the Tribunal is nearly as much as the one assessable under Schedule II of the M.V.Act, I do not want to interfere with the quantum of compensation awarded by the Tribunal below. The learned Counsel for the appellant however points out that the 3rd direction in the decree passed in pursuance of the impugned award is not in conformity with the Judgement since the Tribunal below had already held under issue No.2 that the insurance company is not liable and as such the question of establishing violation of terms and conditions of policy as mentioned in para-3 of the decree is unsustainable and is not in conformity with the Judgement. Since in the impugned award the Tribunal held under issue No.2 that the insurance company is not liable as the terms and conditions of policy Ex:B.6 are violated, the appellant need not establish violation of the terms and conditions of insurance policy, in the event of payment of amount to the claimants and the appellant is entitled to recover the same from the 1st respondent (owner of the vehicle) by approaching the executing court. For the foregoing reasons, there are no merits in the appeal and accordingly the same is dismissed. There shall be no order as to costs. ________________________________ VILAS V. AFZULPURKAR,J 20.07.2010. KRB. THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR M.A.C.M.A.No. 734 of 2008 JUDGEMENT: Dt. 20.07.2010. [1] 1987 ALT 137. [2] 2001 ACJ 843 (SC). [3] (2009)8 SCC 785.