1. Heard the learned counsel appearing for the parties. Though Respondent Nos. 1, 2 and 3 were duly served, no one appeared on their behalf when the matter was called out. Office note shows that, Appeal stands dismissed against Respondent No.5 â Prabhakar Sude vide Registrar's order dated 7th September, 2004.
2. This First Appeal is preferred by original Resp.Nos. 1 and 2 â driver and owner of the Tractor and Trolley challenging the Judgment and Award dated 14th October, 1997 passed by the Member, M.A.C.T., Latur in M.A.C.P. No. 266 Of 1994 holding that original Respondent Nos. 3 and 6 i.e. the New India Assurance Company and the United India Insurance Company Ltd. are entitled to reimbursement of the Interim compensation amount paid by it to the original claimants from the Appellants.
3. In the present proceedings, the accident took place on 26th April, 1994 in which one Pandit Bapurao Dahiphale, age 20 years, occupation labourer and agriculturist died. Hence, his legal heirs filed M.A. C.P. No. 266/1994 in the Court of the learned District Judge and ex officio Member of M.A.C.T., Latur, U/Section 166 of the Motor Vehicle Act claiming compensation of Rs.1 Lakh. In that Claim Petition, the Tribunal by its oral order dated 9th August, 1996 directed that the appellants and Insurance Company do jointly and severally deposit sum of Rs. 25,000/- towards the No Fault Liability ( In short, the N.F.L.). That amount was deposited by the Insurance Company in the trial court.
4. The Tribunal by its Judgment and Award dated 14th October, 1997 dismissed the Claim Petition preferred by present Respondent Nos. 1, 2 and 3 on the ground that original claimants failed to prove that deceased was working with Appellant No.2. At the time of dismissing the Claim Petition, the Tribunal also held that the tractor and trolley were insured only for the purpose of agricultural work. The Tribunal held that when the accident took place, the tractor and trolley were in use for commercial activity other than the agricultural activity. At the time of dismissing the Claim Petition, the Tribunal held that Respondent Nos. 3 and 6 â Insurance companies are entitled to reimbursement of the Interim compensation amount, if paid by them, from the appellants. To that extent the appellants have preferred present First Appeal before this Court.
5. The learned counsel appearing for the appellants submitted that the Judgment and Award dated 14/10/1997 passed by the M.A.C.T., Latur is against the justice, equity and good conscience and same is liable to be set aside to the extent that Insurance companies are entitled to recover the amount from the appellants. He further submitted that it was wrong on the part of the Tribunal to hold that the amount paid by the Insurance companies to the original claimants towards the N.F.L. can be recovered by the Insurance companies from the appellants. He further submitted that on one hand, the Tribunal dismissed the original claimants' petition for compensation and on the other hand held that the Insurance companies are entitled to recover the amount, paid by it towards the N.F.L. from the present appellants, being driver and owner of the offending tractor. On the basis of these submissions, the learned counsel for the appellants submitted that the Judgment and Award dated 14th October, 1997 passed by the M.A.C.T., Latur in M.A.C.P.No. 266/1994 be set aside to the extent of granting the permission to original Resp.Nos. 3 and 6 to recover the N.F.L. amount from the appellants.
6. On the other hand, Mr. Mandhar Deshmukh and Mr. A.B. Gatne, the learned counsel appearing for the Insurance companies vehemently opposed the present First Appeal. They submitted that the appellants have not shown any cause and/or reason to set aside the impugned Judgment passed by the Tribunal. They submitted that Tribunal has rightly held that the Insurance companies are entitled for reimbursement of N.F.L. amount paid by it to the original claimants. They submitted that if the owner of vehicle is not liable to pay the compensation; definitely the Insurance Company cannot be held liable to pay and/or reimburse the compensation. They submitted that in the present proceedings, the Tribunal has categorically held that respondent Nos. 1 to 3 - original claimants are not entitled for any compensation. Hence, the Tribunal granted liberty to the Insurance companies to recover the amount paid by them towards the N.F.L..
7. Mr. A.B. Gatne, learned counsel appearing for Respondent No.6 pointed out that as per the terms and conditions of the Insurance Policy, Insurance Company has agreed to indemnifying only the owner of the vehicle. According to him, if owner of the vehicle is not liable to pay any compensation, there is no question of shifting the liability on the Insurance Company. He further relied on following clause in the Insurance Policy, which reads thus:-
 âThe insured is not indemnified if the vehicle is used or driven otherwise than in accordance with the schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicle Act, 1988 is to be recoverable Insurance. See the clause headed âAVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY.â
On the basis of these submissions, both the learned counsel appearing for Respondent Nos. 4 and 6 submitted that there is no substance in the present First Appeal and same is liable to be dismissed.
8. I have heard the learned counsel for the parties. I have gone through the Record and Proceedings including the copy of Petition for compensation, evidence adduced by parties, copy of the Insurance Policy and other documents. On the basis of submissions made by the learned counsel for the appellants, issue involved in the present First Appeal is:-
Whether the Insurance Company is/are entitled to recover the amount already paid by it, to the original claimants on behalf of the owner of the vehicle, in case, the Tribunal held that the owner is not liable to pay any compensation.?
9. In the present proceedings, it is not necessary to discuss the entire facts of the preset matter because original claimants have not challenged the findings given by the Tribunal in M.A.C.P.No.266/1994. Only the owner of the vehicle and the driver have challenged the part of the impugned Judgment and Award by which the Tribunal granted liberty to the Insurance Company to recover their amount from both the appellants.
10. It is to be noted that in the present proceedings, Tribunal has categorically held that the appellants who are driver and owner of the vehicle and they are not liable to pay any compensation to the original claimants. Therefore, the Insurance Company is/are also not liable to pay any compensation to the original claimants. Hence, the amount paid by the Insurance Company as per the Interim order, under the application for No Fault Liability can be recovered by the Insurance Company from the owners. Insurance Company would have been liable to indemnify the owner, in case they would have been liable to pay any compensation to the claimants. In the present proceedings, the Tribunal has categorically held that the appellants were not liable to pay any compensation to the original claimants. Not only that, there is specific clause in the Insurance Policy as reproduced here-in-above that Insurance Company is liable to indemnify the owner in case is held liable to compensate. In the present case, when the Tribunal held that the owner was not liable to pay any compensation to present respondents Nos. 1 to 3 - original claimants, there is no question of Insurance Company indemnifying the appellants. Hence, what ever amount has been paid by the Insurance Company on behalf of the owner / appellants, they are entitled to recover the same. The issue is accordingly answered.
11. The learned counsel for the appellants pointed out that the appellants have preferred Civil Application No.1402 Of 1998 for stay of impugned order. In that Application, this Court [ Coram ; A.B. Naik, J.] vide order dated 18th August, 2003 granted stay in favour of the appellants on condition that the appellants deposit with this court Rs.12,500/- within four weeks. The learned counsel for the appellants submitted that pursuant to the said order, the appellants deposited sum of Rs.12,500/- in the Registry of this court on 25th August, 2003 by RN No.10309 GBP No.39 and OF No.30/08. He submitted that the appellants have no objection if said amount is withdrawn by the Insurance Company, subject to that, same to be adjusted in Execution Application. In view of the consent given by the learned counsel appearing for the appellants, respondent - Insurance Company is/are permitted to withdraw the amount alongwith interest accrued thereon, if any, and that amount to be adjusted towards the appellants' liability as per the impugned judgment dated 14th August, 1997 passed by the Tribunal. Consequently, I do not find any substance in the present First Appeal.
Hence, following order:-
ORDER
(i) First Appeal No.108 Of 1998 is dismissed.
(ii) Liberty is granted to Respondent Nos. 4 and 6 / Insurance Company to withdraw the amount deposited by the appellants alongwith interest, if any, from the Registry of this Court and same to be adjusted in the Execution Application.