NEW INDIAN ASSURANCE CO LTD Vs. DAYALI

JUDGEMENT

(1.) This order shall also dispose of Misc. Appeal No. 1219 of 1997.

(2.) Being aggrieved by interim award dated 3.9.1997 passed in Claim Case No. 139 of 1996, the insurance company has filed M.A. No. 1218 of 1997 and has filed M.A. No. 1219 of 1997 being aggrieved by the interim award dated 3.9.1997 passed in Claim Case No. 138 of 1996.

(3.) Mr. Rao, learned counsel for the appellant insurance company contends that the Division Bench judgment of this court in the matter of National Insurance Co. Ltd. v. Thaglu Singh, 1995 ACJ 248 (MP), needs a reconsideration because the Division Bench was not justified in observing that the defence about breach of insurance policy was not available to the insurance company while making an award under section 92-A of the old Act or under section 140 of the new Act. Placing strong reliance on the judgment of Karnataka High Court in the matter of United India Insurance Co. Ltd. v. Immam Aminasab Nadaf, 1990 ACJ 757 (Karnataka) and a judgment of the Bombay High Court in the matter of New India Assurance Co. Ltd. v. Gajanan Rambhau Mohite, 1997 ACJ 605 (Bombay), it was contended that the Tribunal is required to conduct a summary trial or enquiry considering the plea of the insurance company and the documents placed on record to come to aprimafacie conclusion that the insurance company would be liable under the terms of the policy. Mr. Rao submits that if there is a breach of the policy conditions then the insurance company would be well within its rights to challenge the claim and would not be answerable to the claim. On the other hand, Mr. Awasthy and Mrs. Tripathi placing reliance upon the Division Bench judgment of this, court in the matter of National Insurance Co. Ltd. (supra) submit that Karnataka Full Bench judgment was considered by the Division Bench of this court and the Division Bench had taken a different view. They submit that at this stage, the court only has to see whether the vehicle was covered under the insurance policy and if the answer is in affirmative then the insurance company cannot avoid its liability.