The New India Assurance Co. Ltd. v. Mrs. Natalina Margarida Fernandes

1. Smt. Avelina Clemente, major, House No.1097, Madel, Curtorim, Salcete-Goa.

2. Shri Alvino Antony Rodrigues, Son of Salvador Rodrigues, Major, driver, HouseNo.958, Bhakubhat, Raia, Salcete-Goa.

3. Shri Salvador Rodrigues (since deceased) represented by his Legal Representatives Bus owner, House No.958, Bhakubhat, Raia, Salcete-Goa. 3(a) Joana Remedian Fernandes 3(b) Robert Rodrigues 3(c) Olivia Rodrigues 3(d) Edwin Rodrigues 3(e) Espy Rodrigues 3(f) Bruno Rodrigues 3(g) Maria Rodrigues All residents of H.No.958, Bacbhat, Raia, Salcete-Goa.

4. M/s. P.K. Transport, Damodar Park, 6-A Building, Shop No.1, L.B.S. Marg, Ghatkopar (W), Mumbai. …. Respondents Mr. E. Afonso, Advocate for the Appellants. Mr. C.A. Coutinho, Advocate for Respondent No.1. AND FIRST APPEAL NO.49 OF 2004

1. The New India Assurance Co. Ltd., Jaganath Building, 2nd Floor, Jose Inacio de Loyala Road, …. Appellants 5 Margao-Goa. Insurer of bus No.GA-02-T-4245.

2. The New India Assurance Co. Ltd., Jaganath Building, 2nd Floor, Jose Inacio de Loyala Road, Margao-Goa. Insurer of bus No.MH-04-P-1250. V/s

1. Smt. Maria Perpetua Pereira e Antao, major, House No.823, Dabhal Kirlapal, Sanguem-Goa.

2. Miss Stella Anthony Antao, minor, represented by her guardian ad litem Smt. Maria Perpetua Pereira e Antao, House No.823, Dabhal Kirlapal, Sanguem-Goa.

3. Miss Philomena Antao, minor, represented by her guardian ad litem Smt. Maria Perpetua Pereira e Antao, House No.823, Dabhal Kirlapal, Sanguem-Goa.

4. Miss Galeta Rita Antao, represented by her guardian ad litem Smt. Maria Perpetua Pereira e Antao, House No.823, Dabhal Kirlapal, Sanguem-Goa.

5. Shri Edwin Rodrigues, Son of Salvador Rodrigues, Major, driver, House No.950, Bhakubhat, Raia, Salcete-Goa.

6. Shri Salvador Rodrigues (since deceased) represented by his Legal Representatives 6 Bus owner, House No.958, Bhakubhat, Raia, Salcete-Goa. 6(a) Joana Remedian Fernandes 6(b) Robert Rodrigues 6(c) Olivia Rodrigues 6(d) Edwin Rodrigues 6(e) Espy Rodrigues 6(f) Bruno Rodrigues 6(g) Maria Rodrigues All residents of H.No.958, Bacbhat, Raia, Salcete-Goa.

7. M/s. P.K. Transport, Damodar Park, 6-A Building, Shop No.1, L.B.S. Marg, Ghatkopar (W), Mumbai. …. Respondents Mr. E. Afonso, Advocate for the Appellants. Mr. J. Godinho, Advocate for Respondent No.5. CORAM : F.M. REIS, J. DATE : 9th DECEMBER, 2010 JUDGMENT : All the above appeals are taken up together for final disposal as they are in respect of the claims put forward by different claimants in connection with the same accident and the Counsel appearing for the respective parties submit that common questions of law involve in all the appeals.

2. The parties shall be referred to in the manner they so appear in the impugned judgment and award. 7

3. The claim petitions were filed by the claimants on the ground that an accident took place on 15/06/1996 involving a truck bearing no.MH-04/P-1250 and a bus no.GA-01-T-4245. The said bus was owned by the respondent no.2 Shri Salvador Rodrigues and the truck was owned by the respondent no.4, M/s. P.K. Transport and both the vehicles were insured with the same company namely the New India Assurance Company Limited.

4. The said bus left Margao on 14/06/1996 and the accident took place at about 5 a.m. at Godsai in Raigad District, wherein each of the claimants were one of the passengers traveling in the said bus and who had sustained injuries on account of the said accident. The claimants by the application filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”) have sought compensation for different amounts. The case of the claimants is that at the relevant time the said bus was being driven by the respondent no.1 namely Shri Alvino Antony Rodrigues in a rash and negligent manner and in a fast speed and it ramped into the said truck which was parked on the road without any parking lights and signals. The claimants also stated that the accident was caused due to the negligence driving/parking of both 8 the vehicles by the respective drivers. The petition was initially filed against the owner, driver and the insurer of the said bus, but thereafter, the owner of the truck and its insurer were also impleaded. The claim petition was not contested by the owner, driver of the bus as well as the owner of the truck. The insurer, the respondent no.3 who is the appellant herein in his written statement disowned its liability to pay the compensation on the ground that the bus was insured in the name of Shri Salvador Rodrigues, but the respondent no.1 was not entitled to drive the said bus or obtain a driving licence as on the date of the licence, which was issued to him, he was 17 years, 5 months and 14 days old and, as such, he being under the age of 18 no driving licence could have been issued to him to drive a motor vehicle under Section 4(3) of the said Act. It is further their contention that the endorsement on the driving licence on 10/05/1993 valid up to 9/05/1996 to drive a transport vehicle could not have been granted on 10/05/1993 as the respondent no.1 was 19 years, 7 months and 17 days old and was under the age of 20 years and therefore disqualified under the Act from obtaining a driving licence to drive a transport vehicle. It is further their case that the responsibility to pay the amount is limited to the terms and conditions of the policy and in view of the said relevant provisions and the rules therein, considering the 9 breach committed by respondent no.2, appellants/respondent no.3 were not liable to pay any amounts to the claimants.

5. The learned Tribunal by the impugned judgment after appreciating the evidence on record has come to the conclusion that on 15/06/1986, at about 5.00 a.m. the claimant was traveling as a passenger in the bus and due to rash and negligent driving of the respondent no.1, as also due to rash and negligent parking of the vehicle of the respondent no.4, there was a collusion between the two vehicles. The Tribunal further held that in the said accident, the claimants had sustained fractures/injuries and even permanent disabilities. The Tribunal further held appellants/respondent no.3 failed to prove that the respondent no.1/ driver was below 18 years of age at the time of the accident and, therefore, he was not entitled to obtain a driving licence under Section 4(3) r/w Section 4(1) of the said Act and that he was disqualified to obtain a driving licence of a transport vehicle under Section 4(2) of the said Act as he was below 20 years of age. The Tribunal further held that respondent no.3 had failed to prove that there was any breach or violation of the terms and conditions of the insurance policy in respect of the said bus and that they were not liable to pay any compensation. 10

6. The findings of the learned Tribunal to the effect that there was rash and negligence on the part of the vehicles involved in the said accident have not been assailed in the present appeal and, consequently, the said findings are to be accepted as being final.

7. The learned Counsel Shri Afonso appearing for the appellants has assailed the impugned judgment and submitted that on the basis of the birth certificate produced by the appellants it is apparent that the respondent no.1 who was driving the vehicle at the relevant time was below 18 years and, as such, disqualified to hold a licence to drive any motor vehicle. He further pointed out that the appellants have examined the officials from the Transport Department which conclusively established that the licence issued to the respondent no.1 was a fake licence and, as such, the question of renewal thereof can, by no stretch of imagination be given any colour of legality to such fake licence. The learned Counsel further submitted that there was a fraud committed by the respondent no.1 in collision with some officials of Transport Department, which has been established by the appellants on the basis of depositions of the officials of the Transport Department examined before the learned 11 Tribunal. The learned Counsel further submitted that on perusal of the licence produced on record, it is apparent that the licence itself had expired and no renewal thereof was sought by the respondent no.1 within the period of 30 days and, consequently, on the relevant date, respondent no.1 was not holding an effective driving licence, which itself absolves the appellants from any liability to pay any compensation. The learned Counsel further submitted that once it is established that the respondent no.1 was not holding any effective valid licence, the appellants cannot be saddled with any responsibility to pay any compensation to the claimants.

8. The learned Counsel took me through the notes of evidence and pointed out that the evidence itself discloses that the licence relied upon by the respondent no.1 is a fake licence and can have no legal effects. The learned Counsel further submitted that as such the question of directing the payment by the Insurance Company and allowing the recovery from the owner would not arise. In support of his submissions, he has relied upon judgment of the Apex Court reported in the case of National Insurance Company Limited V/s. Parvathneni & Anr. (2009 (8) SCC 785).

9. On the other hand, Shri C.A. Coutinho, the learned Counsel 12 appearing for the claimants had supported the impugned judgment and pointed out that even assuming the appellants have been able to establish that the respondent no.1 did not have an effective driving licence on the relevant date, nevertheless, the appellants should be directed to effect the said payment and recover the amounts from the owner and the driver to the extent of their liability. The learned Counsel further pointed out that in fact the claimants have already received the compensation as awarded by the Tribunal. He further took me through the evidence on record and pointed out that there is no infirmity committed by the Tribunal while passing the impugned judgment.

10. Shri Coutinho, the learned Counsel appearing for the owner and the driver of the bus did not dispute the factual aspect to the effect that as on the date of issuing of the licence, respondent no.1 was below 18 years. He, however, pointed out that the appellants have failed to discharge the burden caste on them to the effect that there was any breach in the terms of the policy which could exonerate the appellants from effecting the payment of the compensation to the extent of their liability to the claimants.

11. Upon hearing the learned Counsel and upon perusal of the 13 record the point for consideration in the present appeal would be to ascertain as to whether the licence issued to the respondent no.1, the driver was a fake licence which would imply that he did not have an effective driving licence as on the date of the accident. In the present case, on the basis of the evidence on record, which has otherwise not been disputed, the respondent no.1 was born on 23/07/1963. The licence was issued on 7/03/1991 which itself discloses that he was below the age of 18 as on the date of grant of such licence. The licence for transport vehicle was endorsed on 10/05/1993 and that for heavy vehicle on 28/12/1995. The badge was issued to the driver on 29/05/1996 and the accident came to occur on 15/06/1996. There is no dispute that under the provisions of Motor Vehicles Act, a person has to attain the age of 18 to obtain a driving licence. In the present case, it is evident that as on the date when the licence was issued to the respondent no.1, he was not entitled to have a driving licence. No doubt the licence was thereafter converted to the one for driving a transport vehicle after a period of two years. That by itself cannot validate the licence which was originally a fake licence. The officials from the Transport Department examined by the appellant namely RW2/Vasant Parwar has stated that he is the Head Clerk of the Directorate of Transport, Margao. He has further stated that as per 14 the records, the licence issued to Edwin G.F. Rodrigues, son of Salvador Rodrigues, who is the driver/respondent no.1 showing his address as 958, Raia, Bacbhat, Margao was issued a licence on 7/03/1991 for a motorcycle and light motor vehicle. It was endorsed for professional driving subsequently on 10/05/1993. It was endorsed on 10/05/1993 to drive a transport vehicle and it was valid from 10/05/1993 to 9/05/1996. He has further stated that there is no badge number mentioned in the register which shows that badge was not issued. He has further stated that there is no endorsement to the effect that the licence was renewed after 9/05/1996. He has further stated that records do not reveal as to whether the said Edwin had obtained any other endorsement after 9/05/1996 and that to obtain a professional driving licence a driver should be 20 years of age. He further disclosed that as per the records, his birth date is 23/09/1972. In the cross-examination, he has stated that he could not drive a passenger bus with the licence dated 10/05/1993 and that he would be entitled to drive a public service vehicle only upon receiving a badge. He has further stated that another test is to be given for obtaining a badge. He has further stated that after obtaining a licence on 10/05/1993, he could have obtained a badge immediately. He has further stated that he has not obtained a badge from his office. In the cross-examination 15 by the respondent no.2, the said witness was shown Exhibit 53 and he has admitted that a badge was issued but he further stated that since his licence had expired on 09/05/1996, no badge could be issued to him. He has further stated that the address has been changed to Betim.

12. The next witness RW3/Ashok Bosle examined is a person working as Assistant Director of Transport at Margao. He had stated that the public service vehicle badge was issued on 29/05/1996. He has further stated that the date of birth has been cut in the document and made as 23/09/1972. He has further stated that he does not think that the change has been made officially. In a cross-examination, he has stated that he was not in a position to say as to when the date of birth was changed from 23/09/1973 and replaced by 23/09/1972.

13. From the material adduced on record, it is evident that as on the date of which the licence was issued to the respondent no.1, he was disqualified to hold such a licence. The exercise on the part of respondent no.1 to try and change the address of Betim in order that he could obtain a badge appears to be in suspicious circumstances, considering the erasion effected in the record which 16 has not been explained even by the officials examined before the Tribunal. The learned Counsel for respondent no.2 has in fact not disputed the fact that respondent no.1/driver was less than 18 years as on the date on which the licence was issued. Further, it is not in dispute that as on the date on which the transport licence was issued he was less than 20 years. All these facts point out that the appellant/respondent no.1 who was driving the bus at the relevant time was driving the vehicle on the basis of a fake/invalid licence which he was originally not entitled to be issued under the provisions of the said Act. Once it is held that the licence was fake, the renewal thereof cannot validate such a licence. The Apex Court in 2007 (3) SCC 700 in the case of National Insurance Co. Ltd. V/s. Laxmi Narain Dhut, held at para 36 thus:

36. The inevitable conclusion therefore is that the decision in Swaran Singh's has no application to own damage cases. The effect of fake licence has to be considered in the light of what has been stated by this Court in New India Assurance Co. v. Kamla. Once the licence is a fake one the renewal cannot take away the effect of fake licence. It was observed in Kamla's case as follows: “12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any licensing authority to ‘renew a driving licence issued under the provisions of this Act with effect from the date of its expiry’. No licensing authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit 17 document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine.” In 2008 (12) SCC 426, in the case of National Insurance Co. Ltd. v. Geeta Bhat, the Apex Court has held at paras 6 & 14 thus:

6. Liability of an insurer to reimburse the insured, as an owner of the vehicle not only depends upon the terms and conditions laid down in the contract of insurance but also the provisions of the Motor Vehicles Act, 1988 (the Act). The owner of vehicle is statutorily obligated to obtain an insurance for the vehicle to cover the third- party risk. A distinction has to be borne in mind in regard to a claim made by the insured in respect of damage of his vehicle or filed by the owner or any passenger of the vehicle as contra distinguished from a claim made by a third party.

14. We would, therefore, assume that the licence possessed by the 6th respondent, Gopal Singh was a fake one. Only because the same was fake, the same, having regard to the settled legal position, as noticed herein before, would not absolve the insurer to reimburse the owner of a vehicle in respect of the amount awarded in favour of a third party by the Tribunal in exercise of its jurisdiction under Section 166 of the Motor Vehicles Act, 1988.

14. Apart from that, the evidence further discloses that the licence was renewed up to 9/05/1996. There is no evidence on record to show that the licence was thereafter renewed. Admittedly, the accident occurred on 15/06/1996 and the evidence discloses that within the period of 30 days no renewal was sought 18 for by the respondent no.1. Naturally, as on the date of the accident, the respondent no.1, in any event, did not hold an effective driving licence. The evidence discloses that apart from the fact that the licence obtained by the respondent no.1 was a fake/ invalid licence, the same was not renewed within the time prescribed and, consequently, as on the date of the accident the respondent no.1 did not have an effective driving licence. The Apex Court in the judgment reported in 2007 (10) SCC 650 in the case of Ishwar Chandra v. Oriental Insurance Co. Ltd. has clearly held at para 9 thus:

9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place on 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident. Hence, as the licence has not been renewed as on the date of the accident and no renewal application was filed within 30 days, it cannot be held that the driver had an effective driving licence. In 2008 (12) SCC 701 in the case of National Insurance Co. Ltd. v. Vidhyadhar Mahariwala, the Apex Court has held at para 11 thus:

11. In Ishwar Chandra's case the three decisions referred 19 to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimant to recover the amount from Respondent 2.

15. In such circumstances, the appellants have established that there was a breach of the terms of the policy which would exonerate them from their liability to pay the compensation to the claimants to the extent of the liability of the respondents nos.1 & 2. The learned Tribunal was not justified to come to the conclusion that though initially respondent no.1 might have been disqualified to obtain the licence as on 7/03/1991, as he was 17 years, 5 months and 14 days, but however, when the respondent no.1 obtained the endorsement to drive the transport vehicle on 10/05/1993 he was already 19 years, 7 months and 17 days old and it was not the case that the respondent no.1 did not know to drive the transport vehicle or was otherwise disqualified on account of his age to drive the transport vehicle. The Tribunal was further not justified to hold that as on 29/05/1996 when respondent no.1 obtained the badge it was nobody's case that he did not know to drive the same or that he had not passed the necessary test.

16. The learned Tribunal has failed to consider that the 20 endorsement to drive transport vehicle was not on the basis of any fresh test but merely because the respondent no.1 was already holding the alleged licence. In view of the said judgment of the Apex Court, once the initial licence was a fake licence the same cannot be validated on the basis of such endorsements.

17. In view of the above, considering the facts and circumstances of the case, I find that the initial licence of respondent no.1 being invalid, it cannot be said that such invalid licence came to be validated merely because of the said endorsement. Apart from that the evidence further discloses that the licence was valid only up to 9/05/1996. The Tribunal has also held that the licence was valid up to 9/05/1996. Considering the date of the accident and the evidence of RW2/Vasant Parwar, who has deposed that no renewal application was made to the concerned department, it is evident that as on the date of accident the respondent no.1 in any event did not hold an effective driving licence. On this count also, in view of the judgment of the Apex Court reported in Ishwar Chandra (supra), respondent no.1 did not hold an effective driving licence as on the date of accident. As such, I find that the appellants have established that there was 21 breach of policy committed by the respondent no.2 which would exonerate them from paying any compensation to the claimants, to the extent of their liability.

18. Dealing with the next contention of the learned Counsel appearing for the appellants to the effect that there can be no direction to pay the said amount by the appellants in view of the breach committed by the respondent no.2, and to recover the same from the owner and the driver, I find that the said contention cannot survive. In view of the judgment of this Court reported in the case of United India Insurance Co. Ltd. V/s. Sindhubai Kondiram Darwante & Ors. (2010 (4) Bom.C.R. 325) has held at paras 17,18,19,20,21,23,24,25,26,27 thus:

17. Thus, the Apex Court held that whenever the Tribunal passes an order of directing the insurer to pay compensation amount and thereafter to recover the same from the insured, the Tribunal exercises inherent power. At this stage, it will be necessary to consider a decision of the Apex Court in the case of Oriental Insurance Company Limited Vs. Raj Kumari & ors., 2007 DGLS (soft) 1158 : A.I.R. 2008 S.C. 403. This was a case where the Tribunal allowed the claim application by granting compensation of Rs. 1,40,000/- but restricted the liability of the insurer to Rs. 50,000/-. An appeal was preferred against the said award before the High Court. The High Court held that the entire amount will have to be paid by the insurer and the amount paid in excess of Rs. 50,000/- by the insurer will have to be recovered from the insured. The said award was challenged by the Insurer before the Apex Court. The Apex Court 22 discussed the law relating to precedents and in Paragraph 16, the Apex Court held thus: “16. In the instant case the insurer was a private limited company doing transport business. There was no material placed before the High Court to show that the claimants would have any difficulty in recovering the awarded amount from it. That being so, the High Court's order is modified to the extent that the insurer shall pay an amount of Rs. 50,000/- with interest awarded to claimants. The balance has to be paid by the insured.”

18. At this stage, a reference will have to be made to certain decisions of this Court. In the case of (United India Insurance Company Limited Vs. Kamal Maruti Darekar & ors.)10, 2007(6) Bom.C.R. 752(A.B.) : 2007(6) All.M.R. 392, this Court had occasion to consider the question whether the insurer can be directed to deposit the amount of compensation though a defence under section 149(2) of the said Act of 1988 was proved by the Insurer. This Court relied upon a decision of the Apex Court in the case of (National Insurance Company Limited Vs. Swaran Singh)11, 2004(5) Bom.C.R. 467(S.C.) : 2004(3) S.C.C. 297. After considering the said decision, in Paragraph 16, this Court held thus: “16. From the above observations, it is amply clear that the insurer may legally establish defence to avoid liability and cannot be held jointly liable to pay compensation amount to the claimants, if such defence is duly proved within the meaning of section 149(2), but even in such a case the insurer is statutorily liable to satisfy the award in the first instance qua the claimants, who are third parties. In view of the fact that special protection is made available to third parties under statutory provisions of the Motor Vehicles Act, third parties are not concerned with terms of the contract between insurer and insured. They cannot be, therefore, denied fruits of the award rendered by the Tribunal and cannot be compelled to seek recovery only from the owner of the vehicle, due to absence of legal liability of the insurer or on account of faults committed by the insured.” (emphasis added) 23

19. Similar view has been taken by this Court in the case of (United India Insurance Company Limited Vs. Branch Office at Rial Toly & ors.)12, 2008(4) Bom.C.R. 851. This Court relied upon a decision of three Judge Bench of the Apex Court in the case of (National Insurance Co. Ltd. Vs. Baljit Kaur)13, 2004(2) S.C.C. 1. 20. Learned Counsel appearing for the appellant has placed reliance on an unreported judgment of a Division Bench of this Court in LPA No. 121 of 2000. After considering the law on this aspect in paragraph 65, the Division Bench held thus: “65. The question which arises is what is the effect of section 96(3) and (4) of the said Act and section 149(4) and (5) of the Motor Vehicles Act, 1988. Can it be said that because of these provisions, the insurance company can be compelled to make payment of the awarded amount and recover it from the insured in all cases ? We have carefully considered these provisions. On the basis of these provisions, we are unable to lay down a broad proposition that in all cases, the insurer must be made to pay the entire compensation amount and then recover it from the owner of the offending vehicle.”

21. In the case of National Insurance Co. Ltd. Vs. Swaran Singh, 2004(5) Bom.C.R. 467(S.C.) : 2004(3) S.C.C. 297, Apex Court dealt with the said question. In paragraph 104 of the decision it was held thus:

104. It is, therefore, evident from the discussions made hereinbefore that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time.

105. Apart from the reasons stated hereinbefore, the doctrine of stare decisis persuades us not to deviate from the said principle.

106. It is a well settled Rule of law and should not ordinarily be deviated from. See (Bengal Immunity Co. Ltd. Vs. State of Bihar)14, 1955 DGLS (soft) 51 : 24 1955(2) S.C.R. 603 : A.I.R. 1955 S.C. 661, (Keshav Mills Co. Ltd. Vs. CIT)15, 1965 DGLS (soft) 23 : 1965(2) S.C.R. 908 : A.I.R. 1965 S.C. 1636, (Union of India Vs. Raghubir Singh)16, 1989 DGLS (soft) 327 : 1989(3) S.C.R. 316 : 1989(2) S.C.C. 754, (Gannon Dunkerley and Co. Vs. State of Rajasthan)17, 1992 DGLS (soft) 775 : 1993(1) S.C.C. 364; (Belgaum Gardeners Coop. Production Supply and Sale Society Ltd. Vs. State of Karnataka)18, 1992 DGLS (soft) 329 : 1993 Supp.(1) S.C.C. 96 and (Hanumantappa Krishnappa Mantur Vs. State of Karnataka)19, 1991 DGLS (soft) 532 : 1992 (Supp. 2) S.C.C. 213.

107. We may, however, hasten to add that the Tribunal and the Court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of Clause (a) of sub-section (2) of section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage. (emphasis added)

23. Lastly a reference will have to be made to a recent order of the Apex Court in the case of National Insurance 25 Company Limited Vs. Parvatheneni and anr. (supra). In paragraph 4 of the said decision, the Apex Court observed thus : “4. No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle. See for example (National Insurance Co. Ltd. Vs. Yellamma)20, 2008 DGLS (soft) 589 : (2008)7 S.C.C. 526, (Samundra Devi Vs. Narendra Kaur)21, 2008 DGLS (soft) 891 : (2008)9 S.C.C. 100 vide S.C.C. 104, para 16), (Oriental Insurance Co. Ltd. Vs. Brij Mohan)22, 2007 DGLS (soft) 594 : (2007)7 S.C.C. 56 vide S.C.C. 64, para 13 and (New India Insurance Co. Vs. Darshana Devi)23, 2008 DGLS (soft) 182 : (2008)7 S.C.C. 416 vide S.C.C. 424, para 21, etc. We have some reservations about the correctness of the aforesaid decisions of this Court.” These observations were made after recording a

24. prima facie view in paragraph 3 which reads thus: “3. Prima facie, we are of the opinion if the Insurance Company proves that it has no liability to pay compensation to the claimants, the Insurance Company cannot be compelled to make payment and later on recover it from the owner of the vehicle.” In paragraph 7, the Apex Court issued following

25. directions. “7. Hence, we direct that the papers of this case be placed before the Hon'ble the Chief Justice of India for constituting a larger Bench to decide the following questions: (1) If an insurance company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle ? 26 (2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142 ? Does Article 142 permit the Court to create a liability where there is none ?” It must be stated that there are at least two 26. decisions of a Bench of three Hon'ble Judges of the Apex Court taking a view that in a case where breach of policy condition was established in a claim by third party, a direction can be issued by against the Insurer to deposit compensation amount and thereafter to recover the same from the Insured by executing the said award. In fact, in the said case of National Insurance Company Limited Vs. Parvathneni & anr. (supra), the Apex Court has referred to at least four such decisions taking a view that the insurer can be directed to deposit first and thereafter recover from the Insured. However, a doubt has been expressed regarding correctness of the aforesaid decisions of the Apex Court and a reference has been made to a larger Bench. However, the view taken in the decision of larger Bench in the case of Swaran Singh (supra) still holds the field. The Division Bench of this Court in LPA No. 121 of 2000 has observed that the Bench was unable to lay down a broad proposition that in all cases, the insurer must be made to pay the entire compensation amount and then recover it from the owner of the offending vehicle. It is true that in all the cases where the insurer is held not liable, such a course cannot be adopted. It will depend on the facts and circumstances of each case.

27. Therefore, as the legal position stands today, there is a power vesting in Tribunal and in this Court, depending upon the facts and circumstances of each case, to direct the insurer to pay compensation amount and thereafter to recover the same from the insured.

19. In view of the said judgment of the Apex Court, I find that the Tribunal as well as this Court has powers to direct the Insurance to pay the amount and recover the same from the 27 insurers. In the present case, considering the submission of Shri Coutinho, learned Counsel appearing for the claimants that amounts have already been recovered by them, I find in the interest of justice, it would be appropriate that the appellants be directed to pay the said amount reserving the right to recover the extent of their liability from the respondents nos.1 & 2, by taking appropriate proceedings in accordance with law.

20. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) Though the appellants/respondent no.3 have been able to establish the breach of terms of policy committed by respondent no.2, nevertheless, appellants/ respondent no.3 are directed to pay the amount of compensation as awarded by the Tribunal to the claimants and recover the amount to the extent of their liability from the owners/drivers/respondents nos.1 & 2 involved in the said accident by taking appropriate proceedings in accordance with law. 28 (iii) Subject to the said modification, the impugned judgment passed by the Tribunal stands confirmed. (iv) All the above appeals stand disposed of accordingly, with no order as to costs. NH/- F.M. REIS, J.