NEW INDIA INSURANCE COMPANY Vs. RAMESH KUMAR

JUDGEMENT

(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: