F.A.O.No.586 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.586 of 2001 Date of decision:5th July, 2010 New Assurance Company Ltd. .......Appellant Versus Smt. Maya Devi and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. L.M.Suri, Senior Advocate, with Ms. Radhika Suri, Advocate, for the appellant. Mr. T.S.Chauhan, Advocate, for respondent Nos. 2 and 3. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal complaining of breach of condition in the policy of the owner allowing the passengers to travel in a private vehicle. Before the Tribunal there was evidence of PW-3 who was passenger in Tata Sumo vehicle. He had said that he had paid Rs. 700/- as advance to the owner. PW-4 had also spoken about the payment but he said that the money had been paid to one Sanjay Kumar who was driving the Tata Sumo and promised to pay it to the owner of the vehicle. The Tribunal found that the breach of the condition had not been proved. 2. In this case where the evidence of the passengers themselves contained an admission of payment as hire charges to the F.A.O.No.586 of 2001 2 owner and the Registration Certificate and license showed that it was only insured as a private vehicle, the Tribunal ought to have seen that the breach of condition of the policy was proved. More so, the insured did not examine himself to contend that he did not receive the payment from the passengers or that such a hire had not undertaken by the driver even without his knowledge or consent. The proof of breach is clearly established and the insurance company shall not be therefore, liable to indemnify the owner. 3. Even if the insurance company is not liable, the duty to satisfy the award for the claimants cannot be doubted. In such a situation, the liability to satisfy the award will be accompanied with a right of recovery from the owner/insured. This cannot be doubted in anyway, as specifically provided by the decision of the Supreme Court while dealing with the effect of proviso to section 149(4) and section 149(5) of the M.V.Act in New India Assuracne Co. v. Kamla (2001) 4 SCC 342. 4. Under the circumstances, the Insurance Company shall not be liable to indemnify the insured. The liability is to satisfy the claim under the award with a right of recovery against the insured. The award of the Tribunal is modified and the appeal allowed to the above extent. [K.KANNAN] JUDGE 5th July, 2010 Shivani Kaushik