New India Assurance Co. Ltd. vs Yuvraj and Others

A.H. Joshi, J.—The appellant is aggrieved by the award passed by the Motor Accidents Claims Tribunal, Nagpur in Claim Petition No. 338 of 1995 dated 27.4.2007.

The ground of challenge is a breach of condition of the policy. The breach of condition in the present case is that the vehicle was insured as a private vehicle, but was used for carrying passengers. According to the insurance company, therefore, it has no liability to pay the compensation. It is then urged that the liability to pay first and get reimbursed thereafter as decided in case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , will not apply in view of latter two judgments of this Court.

Learned advocate for the appellant has relied upon the following judgments in support of his contention:

(1) National Insurance Co. Ltd. v. Swaran Singh 2004 ACJ 1 (SC);

(2) National Insurance Co. Ltd. Vs. Baljit Kaur and Others, ;

(3) Suman Arjun Shegokar Vs. Prasad Gopalrao Chirkuri and Others, ;

(4) National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, ;

(5) The Oriental Fire and General Insurance Company Vs. Smt. Sharada Tukaram Koli and Others, ;

(6) New India Assurance Co. Ltd. v. Bijalabai Marutin Dharange 2006 (6) All MR 90;

(7) Malla Prakasarao Vs. Malla Janaki and Others, ;

(8) United India Insurance Co. Ltd. Vs. Lilabai and Others, ;

(9) The Oriental Insurance Company Limited Vs. Meena Variyal and Others, ;

(10) Oriental Insurance Co. Ltd. v. Brij Mohan 2007 ACJ 1909 (SC);

(11) National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, ;

(12) Traders Pvt. Ltd. v. Sunanda 2010 ACJ 669 (Bombay);

(13) Sharad Yashwant Joshi v. Mohammed Yusuf Nasiruddin 2010 ACJ 256 (Bombay);

(14) United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare and Others, and

(15) Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another, .

Though a large number of judgments have been cited, learned advocate Mr. A.H. Patil emphasised and has pointed out to the observations made by this Court in the judgment in United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare and Others, , where the judgment in case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , is not followed. The observation in this regard reads as follows:

Directions in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , appear to have been issued in exercise of extraordinary jurisdiction available only to the Apex Court and could not be, therefore, basis of National Insurance Co. Ltd. Vs. Prakash Sakharam Dudhankar and Others, .

Learned advocate has also pointed out to the view taken by this Court in the aforesaid case of United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare and Others, , is followed with approval by the Division Bench of this Court in case of Traders Pvt. Ltd. v. Sunanda 2010 ACJ 669 (Bombay).

Now the question before this Court is whether to follow the judgment of the Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , or deviate, relying upon the judgment of Division Bench of this Court.

Unless a judgment of Hon''ble Supreme Court is not at all applicable on the facts of the case on hand, any judgment of Hon''ble Supreme Court, in humble view of this Court, has to be followed in letter and spirit, apart from arguments to the contrary, own views, likes or dislikes.

Pursuing a course of deviating therefrom would amount to speculate that the Hon''ble Apex Court exercised its extraordinary powers peculiar to the jurisdiction of Hon''ble Supreme Court.

Unless Hon''ble Supreme Court restricts application of any judgments to the case at hand, particularly, between the parties, and further directs that the judgment would not operate as a precedent, will have to be followed as it stands as a binding precedent. This Court would, therefore, prefer to rely on the judgment of the Hon''ble Supreme Court.

In these premises, so long as the Hon''ble Apex Court does not in any of its judgments direct that the law as laid down in the form of direction in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , should not be followed as a precedent, this judgment has to be followed as a binding precedent, than finding a way out and deviate from it.

In the result, no fruitful purpose of law and justice would be served by admitting the appeal. Appeal therefore, deserves to be dismissed, and is dismissed. Needless to observe that the liberties available to insurance company as in Baljit Kaur''s case 2004 ACJ 428 (SC), for recoupment shall be available to the appellant herein.