RAJESH BALIA, J. - (1.) HEARD learned Counsel for the parties on stay application.
(2.) PRIMA -facie, I am of the view that the decision rendered by the Supreme Court in New India Assurance Co., Shimla v. Kamla 2001 AIR SCW -1340 makes out the distinction between the cases of the absolute liability of the insurer which may arise out of a contract and the right of the claimant party to recover compensation as a result of accident from Insurance Company. If the Insurance Company succeeds in establishing that there was breach of the policy condition, the right of the claimant to effect recovery from the Insurance Company remains unimpaired because it is a statutory liability of the Insurance Company under Section 147 of the Act of 1988 on the one hand and on the other hand the Insurance Company is absolved from absolute liability on the ground that relationship between the insurer and the insured arise from contract and in case breach of any condition by the insurer Insurance Company is absolved from fulfilling the contract to indemnify the insured from loss. This is recognised and is permissible under Section 149. The Court said as under: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issue shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. Insurance Company must be given an opportunity to substantiate its contention that document is fabricated one. If the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured vehicle owner to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount which the insurer is directed to pay to the claimants -third parties from the insured person. I am, therefore, prima -facie of the opinion that the claimants cannot be deprived of their right to recovery from the Insurance Company and therefore, the interim order passed by this Court is modified to the extent that the Insurance Company shall deposit the entire amount with the Motor Accident Claims Tribunal and it shall be paid to the claimants subject to furnishing an adequate security to the satisfaction of the Motor Accident Claims Tribunal in terms of the award for restitution of that amount in case the appeal succeeds qua the claimants also. The amount may be deposited within a period of six weeks.;