IMPORTANT POINT
The court established that an insurance company may be required to pay compensation to claimants even if there is a breach of policy conditions, provided the circumstances warrant such an order, thereby ensuring access to justice for victims' families.

JUDGMENT/ORDER

1. The present appeal is preferred under Sec. 173 of the Motor Vehicles Act, 1988 (for short, "the said Act") by the New India Assurance Company Limited against judgment and award dtd. 25/7/2011 passed by learned Chairman, Motor Accident Claims Tribunal at Chandrapur (learned Member of the Tribunal) in MACP No.99/2004. The parties are hereinafter referred as per their original nomenclature.

2. Brief facts of the case are as follows: Applicant No.1 Suryabhan is son and applicant No.2 Saraswati is widow of deceased Janu Chouke. On 29/3/2004, the deceased went along with Balkrushna Ramaji Shende, Vishwanath Chintaman Wanjari, Dnyaneshwar Ramteke, and Santosh Khobrage for purchasing and selling transaction of bullocks. The deceased was working as broker of bullocks and the above said persons were also involved in purchasing and selling of bullocks. The above said persons were to recover credit amount from one Ganesh Sahare who had purchased bullocks from them and, therefore, the deceased along with the above named persons travelled in a Tempo Trax from Botekasa Fata. The said Tempo Trax bearing No.CG-04-ZD-2268 was driven in a rash and negligent manner. As the said vehicle was driven in excessive speed, the driver of the vehicle could not control the said vehicle and dashed against one tree which was on the left side of the road. Due to the severe dash, the said vehicle turned turtle and the deceased sustained grievous injuries. Though the deceased was taken to the hospital, he was declared dead. Regarding the said accident, a crime was registered against the driver of the said vehicle. The said vehicle was owned by the opponent No.2 and validly insured with the opponent No.1. At the time of the accident, the deceased was 62 years old and earning Rs.3000.00 per month. As per the claimants, as the said accident took place due to a rash and negligent driving of the driver owned by opponent No.2 and validly insured with opponent No.1, both the owner and Insurance Company are jointly and severally liable to pay the compensation.

3. In response to the notice, the opponent No.2 - owner of the said vehicle remained absent and, therefore, the petition proceeded as ex parte against her.

4. The opponent No.1 - Insurance Company resisted the claim by filing written statement vide Exhibit-16. As per the defence of the Insurance Company, the deceased was travelling as a gratuitous passenger in vehicle Tempo Trax bearing No.CG-04-ZD-2268. The said vehicle was for private use and for domestic purpose. However, opponent No.2 - owner of the vehicle used the said vehicle for carrying passengers and therefore, the Insurance Company is not liable to pay the compensation.

5. Before learned Member of the Tribunal, the claimant has adduced the evidence as well as eyewitness namely Vishwanath Chintaman Wanjari was examined.

6. In support of the defence, no evidence is adduced by the Insurance Company.

7. Learned Member of the Tribunal has found that the deceased was travelling in the said vehicle which was used for commercial purpose though the said vehicle was for private purpose.

8. The evidence on record shows that the said vehicle was used for carrying the passengers.

9. While holding that owner of offending vehicle has committed breach of insurance policy and Insurance Company is not liable to pay compensation, in given circumstances directed the insurer to first pay compensation and then recover it from the insured or owner of offending vehicle by relying upon various judgments.

10. I have heard learned counsel Shri M.B.Joshi for the appellant - Insurance Company. Though respondents were served with Notices, none appeared for them.

11. The only point arises for determination is: Whether learned Member of the Tribunal is justified with power to direct the insurer to first pay the amount of compensation and, thereafter, recover the same from the insured?

12. Learned counsel Shri M.B.Joshi for the appellant - Insurance Company vehemently submitted