- (1.) THE present appeal has been filed by the appellant-claimant against the award dated 20.8.99 passed by the MACT, Kotputli, District Jaipur in MAC No. 232/93 whereby the Tribunal while exonerating the respondent No.1-Insurance Company, has directed the respondent Nos. 2 and 3 to pay the compensation to the appellant in the sum of Rs. 26,000/- with interest @ 12% per annum from the date of application till realisation.
(2.) IT has been submitted by the learned counsel Mr. Sandeep Mathur for the appellant that the Tribunal has committed an error in not holding the Insurance Company liable and in fastening the liability only on respondent Nos. 2 and 3 i.e. the owner and driver. He further submitted that the respondent No.2 M/s. Granite India having been closed, it is difficult to recover the amount of compensation from the said respondent. Relying upon the judgments of the Apex Court in the case of National Insurance Company Ltd. Vs. Swaran Singh & Ors. RLW 2004(2) SC, 161 and in the case of Sohan Lal Passi Vs. P. Sesh Reddy & Ors. 1996 ACJ 1044, Mr. Mathur has submitted that the Insurance Company is initially liable to pay the compensation to the claimant even if the Insurance Company had proved its statutory defence before the Tribunal and that it could later on recover the same from the respondent Nos. 2 and 3. In the instant case, it appears that the appellant-claimant had received the injuries in the accident which had occurred on 27.2.91, when the appellant was going towards Chungi Naka, Shahpura and when one Scooter bearing No. RJ-14-1M-0913 being driven by respondent No.3 came and dashed with the appellant. The claim petition having been filed by the appellant, was resisted by the respondent No.1 Insurance Company contending interalia that there was breach of terms of policy committed by the insured and the driver. The Tribunal after considering the evidence on record exonerated the Insurance Company and held that the respondent Nos. 2 and 3 were liable to pay the compensation of Rs. 26,000/- with interest @ 12% from the date of application till realisation. The submission made by the learned counsel Mr. Mathur that the Insurance Company is liable to pay the compensation even if the defence available under Section 149 of the Act was proved by it, does not find any consideration. It may be stated that the Insurance Company when takes the statutory defence available to it under Section 149(2) of the Act, it has to prove the same by leading proper evidence, however once it is proved and the Tribunal finds that there was a wilful breach of conditions of the policy, the Insurance Company could not be held liable to pay the compensation. The judgments cited by the learned counsel for the appellant has no relevance to the facts of the present case. There is nothing in the said judgments to hold that the Insurance Company has to pay the compensation even if it was proved that there was a wilful breach of conditions of policy as contemplated under Section 149(2) of the Act. In that view of the matter, there being no illegality or infirmity in the award passed by the Tribunal, this court does not find any merits in the present appeal. The appeal is, therefore, dismissed.;