Telangana High Court
The Reliance General Insurance Co. ... vs S.Balaraj And Another on 13 June, 2023
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No.2076 OF 2010
JUDGMENT:
1. This Motor Accidents Civil Miscellaneous Appeal is preferred by the appellant/insurer aggrieved by the judgment dated 02.07.2010 in O.P.No. 2086 of 2008, passed by the Motor Vehicles Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Courts, Hyderabad (for short 'the Tribunal').
2. Heard Sri. A. Ramakrishna Reddy, learned counsel for the appellant, and Sri. B. Venkat Reddy, learned counsel for Respondents No. 1 and perused the record.
3. The Respondent No.1 filed the aforesaid O.P seeking compensation of Rs.2,00,000/- for the injuries caused to him on 03.07.2008, as a result of the rash and negligent driving of the vehicle owned by the Respondent No.2 herein. The Tribunal on considering the oral and documentary evidence on record, allowed the OP in part awarding a total compensation of Rs.1,18,000/- with interest @ 7.5% p.a. from the date of filing of the claim petition till the date of deposit, holding the Appellant and the Respondent No.2 jointly and severally liable. Further the Tribunal granted liberty to the appellants herein to recover the amount paid by them from the 2 Respondent No.2 herein. Aggrieved by the same the instant appeal is preferred.
4. Learned Standing Counsel appearing for the Appellants contended that the Tribunal on holding that the Respondent No.2 had violated the conditions of the insurance policy ought not have applied the principle of 'pay and recover'; and that since there was no liability of the appellant, the direction to pay compensation and recover the amount would amount to rewriting the contract between the parties.
5. It is further contended that although the Supreme Court applied the principle of 'pay and recover' in certain cases even where breach in policy was established, the same was done in the exercise of powers of the Supreme Court under Article 136 R/w Article 142 of the Constitution of India. Therefore, the Tribunal cannot apply the said principle by relying on such judgments of the Supreme Court.
6. I have taken note the respective contentions urged.
7. This issue was directly in consideration before the Supreme Court in Shamanna and Ors. Vs.The Divisional Manager, The 3 Oriental Insurance Co. Ltd. and Ors, 1 where the High Court of Karnataka while observing that the power to order pay and recover even when the breach in policy was established by the insurer, is the discretionary power of the Supreme Court under Article 142, set-aside the order of the Tribunal to pay and recover. On the matter being carried to the Supreme Court, the Court reversed the order of the High Court clarifying that the decision of the three- judge bench in National Insurance Co. Ltd. Vs. Swaran Singh and Ors2, is to be followed. The relevant observations are as under:
"11. In the present case, to deny the benefit of 'pay and recover', what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and Anr. MANU/SC/1588/2009 : (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction Under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that "if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction Under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle". The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case.
12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment 1 (2018)9SCC650 2 (2004)3SCC297 4 passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first Respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored."
8. In the light of the aforesaid, the issue is no longer res - integra.
9. In view of the above, the order of the Tribunal does not call for any interference. Accordingly, this Motor Accident Civil Miscellaneous Appeal is dismissed.
10. Pending miscellaneous petitions if any, shall stand closed. No order as to costs.
______________________ T. VINOD KUMAR, J Date: 13.06.2023.
MRKR/VSV 5 THE HON'BLE SRI JUSTICE T. VINOD KUMAR M.A.C.M.A. No. 2076 of 2010 13 .6.2023 MRKR/VSV