- (1.) THIS appeal is preferred, against judgment and award dated 24.7.2003, passed by the learned Member, Motor Accident Claims Tribunal, Akola, in MAC Petition No.244 of 2001, by the appellant, whereby the compensation was awarded in the sum of Rs.50,000/ - along with interest at the rate of 9% per annum from the date of presentation of the petition till realization. The appellant is aggrieved by the said judgment and award on the ground that the insurer ought to have been held liable to pay the compensation pursuant to insurance policy, which was operative during the period from 13.1.2001 to 12.1.2002.
(2.) THE accident in question had occurred on 13.1.2001 on the same date when insurance policy was operating. It is the grievance of the appellant that the learned Member of the Tribunal without framing any issue as to whether fraud is practised upon the insurer/owner of the motor vehicle by one insurance agent i.e. B.M.Sadhwani and the official of the bank concerned went on to decide the controversy on the basis of the conjectures and surmises and wrongly exempted insurer from the liability to pay the compensation. The quantum of compensation is not disputed. Under these circumstances, since the amount of compensation was awarded in the sum of Rs. 50,000/ - only along with interest payable by the owner of the offending motor vehicle despite of fact that the insurance policy was produced as Article -B which appears operative from 13.1.2001 to 12.1.2002. The insurer I think was wrongly exempted from joint and several liability to pay the compensation to the claimant more so when the fraud is alleged. It is necessary to give details and particulars as to the fraud which is allegedly practised upon the insurance company. In the absence of pleading such details and particulars as to alleged fraud and also in the absence of framing any issue as to whether fraud was practised upon the insurance company by the insurance agent and its effect upon the liability of the insurer to pay the compensation, it was not justified, In the facts and circumstances of the case, on the part of the learned Member of the Tribunal to exempt insurance company from joint and several liability to pay the compensation to the claimant. I think it is general rule that when prima facie it appears that insurance policy is in operation it is necessary to insist upon the insurer to pay the compensation and then to agitate the issue before the Tribunal to recover it from the owner of the offending motor vehicle. If according to the insurer, fraud was practised upon it by the insurance agent and if at all insurance policy was not operative on the date of the accident. The learned counsel appearing for the insurance company disputed the liability on the ground that the learned Member of the Tribunal discussed the liability of the company and then exempted it from payment of the compensation finding that the fraud was pracrtised upon the insurance company. However, it is not disputed by the learned counsel for the insurance company that no specific pleadings were there and no any issue was framed by the Tribunal so as to discuss the facts and circumstances of case. When no issue was framed; no discussion was warranted unless issue was framed as is required to be answered. That being so, prima faice considering the insurance policy as produced on record operating on the date of the accident, I think the insurance company herein is jointly and severally liable to discharge the liability for payment of compensation as awarded by the impugned judgment and award. However, the issue as to fraud is kept open. It may be agitated by the insurer before the Tribunal even after the payment of compensation and if so agitated, the insurance company upon adjudication may recover the amount paid from the owner of the offending vehicle in case the Tribunal finds that the fraud was practised upon the insurance company by its insurance agent. In this regard, it is also pertinent to bear in mind the provision under Section 237 of the Indian Contract Act, 1872. The Tribunal will consider legal and factual position while appreciating the contention as to fraud if raised before it by the insurer after it discharges its joint and several liability to pay the compensation pursuant to the impugned judgment and award.
(3.) IN the result, the impugned judgment and award is therefore, modified, thus: The appeal is partly allowed. The quantum of compensation is same as awarded by the Tribunal. However, the insurance company and the owner of the offending motor vehicle shall be liable jointly and severally to pay the compensation to the claimant along with interest in the sum of Rs.50,000/ -.;