Madhya Pradesh High Court
United India Insurance Co.Ltd. vs Nattha Ram & Ors. on 20 July, 2017
MA-104-2004
(UNITED INDIA INSURANCE CO.LTD. Vs NATTHA RAM & ORS. )
20-07-2017
Shri B.N.Malhotra, learned counsel for the appellant
Insurance Company.
Shri R.P.Gupta, learned counsel for the respondents No.1
and 2.
This appeal has been filed being aggrieved by the award dt.31.10.2003 passed in Claim Case No.29/2003 by the Court of Fourth Motor Accident Claims Tribunal (Fast Track Court), Dabra, District Gwalior, whereby a sum of Rs.1,55,928/- has been awarded alongwith 9% interest.
It is the contention of the learned counsel for the appellant Insurance Company that the deceased was travelling on mudguard of the tractor and therefore he was not covered by the insurance policy, thus, the Claims Tribunal erred in awarding compensation against the insurance company. He has placed reliance on the decisions of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Serjerao and others as reported in 2008 ACJ 254 so also in the case of Oriental Insurance Company Ltd. Vs. Brij Mohan as reported in 2007 ACJ 1909. In the case of Brij Mohan (supra) Hon'ble Supreme Court while exercising its extra-ordinary power under Article 142 of the Constitution of India directed the Insurance Company to satisfy the award looking to the poor condition of the claimant and further directed that it would be entitled to realise the amount from owner of the vehicle without initiating separate proceeding.
Shri R.P. Gupta, learned counsel for the respondents No.1 and 2 submits that in terms of the order passed by this court, Insurance Company had already deposited the compensation with the Claims Tribunal and in terms of the order dt.26.4.2004, he has already withdrawn 50% of the amount and therefore he be permitted to withdraw the remaining amount and let Insurance Company recover the same from the owner and driver of the offending vehicle. He has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Brij Mohan (supra).
As far as judgment in the case of Brij Mohan (supra) is concerned, Hon'ble Supreme Court had exercised its extraordinary jurisdiction under Article 142 of the Constitution of India, which is not vested in this court, therefore, if legally insurance company is not bound, then no such orders can be issued by the High Court. However, it is also true that the amount, which had already been withdrawn by the claimants can not be directed to be deposited by the claimants with the Insurance Company and to that extent Insurance Company will be required to recover from owner and driver of the offending vehicle. For the remaining amount, Insurance Company will be entitled to seek refund from the Claims Tribunal, but the claimants will be free to recover the same from the owner and driver of the offending vehicle, inasmuch as the insurance company has been able to satisfy this court that there was fundamental breach of the terms of the insurance policy in travelling on mudguard of a tractor and therefore liability of the Insurance Company can not be fastened.
With the aforesaid, this appeal is partly allowed. It is directed that the appellant Insurance Company will be entitled to seek refund of unclaimed 50% of the award from the Claims Tribunal and the claimants shall be entitled to recover from owner and driver of the offending vehicle. It is also clarified that the amount, which has already been withdrawn by the claimants can be recovered by the appellant Insurance Company from the owner and driver of the offending vehicle, as was directed by the Claims Tribunal.
(VIVEK AGARWAL) JUDGE SP