High Court of Bombay

The New India Assurance Company Limited Vs. Anju and Ors.

MANU/MH/2735/2023

17.07.2023

Insurance

Insurer cannot avoid liability to pay the compensation to the victim, although insurer can seek the recovery rights from the insured, who has breached the terms of the contract

The Appellant/insurer (original respondent no.1) has filed present appeal impugning the judgment and award passed by the Motor Accident Claims Tribunal. The Tribunal allowed the claim petition thereby directing the Respondent no.1 and 2 to jointly and severally pay the compensation of Rs.9,37,200 to the claimants along with the interest @ 9% p.a.

The police papers, particularly, the contents of the panchnama clearly depicts fault of the truck driver. The FIR shows that the truck driver was charged of negligence. The respondents have not controverted the material evidence against them. In that view of the matter, no fault can be found in the conclusion drawn by the Tribunal. In that view of the matter, it is difficult to accede with the submissions advanced on behalf of the appellant to consider contributory negligence of the deceased.

As held by Supreme court of India in case of Pappu and Ors. vs. Vinod Kumar Lamba, the owner of vehicle is required to plead and place material on record contending that he had appointed authorized Driver and took reasonable care to comply statutory and contractual obligation and discharge his initial burden. In that view of the matter, there is no impediment in accepting the defense of the insurer on the point of driving license. However, it is trite law that the insurer cannot avoid liability to pay the compensation to the victim of the accident although it succeeds in bringing home the defense of breach of policy as contemplated under section 149 (2) of the Motor Vehicles Act, 1988. Resultantly, the appellant/insurer can at the most seek the recovery rights from the insured, who has breached the terms of the contract.

The submission of appellant that Tribunal awarded excessive interest on compensation amount deserves rejection, since no material placed on record of this court to show that Tribunal exercised its discretion under Section 171 of MV Act in arbitrary manner.

The Respondent nos.1 and 2 shall jointly and severally pay a sum of Rs.9,37,200 (inclusive of 'No Fault Liability') to the claimants along with the interest @ 9% p.a. from the date of the filing of the claim petition. The appeal is partly allowed.

Tags : Compensation Direction Legality

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