Gujarat High Court
National Insurance Co. Ltd vs Laliben Widow Of Galabhai Hirabhai ... on 8 July, 2024
NEUTRAL CITATION
C/FA/3741/2006 JUDGMENT DATED: 08/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3741 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATIONAL INSURANCE CO. LTD.
Versus
LALIBEN WIDOW OF GALABHAI HIRABHAI VANKAR & ORS.
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR JV JAPEE(358) for the Defendant(s) No. 1
Mrs. Nidhi S Mehta(6606) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/07/2024
ORAL JUDGMENT
1. This appeal is filed by the appellant-insurance company under Section 173 of the Motor Vehicles Act, 1988 Page 1 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined (`MV Act' for short), being aggrieved and dissatisfied with the judgment and award dated 11.7.2006 passed by the Motor Accident Claims Tribunal (Main) Sabarkantha at Himmatnagar in MACP No.1321 of 1997, whereby the claim petition of the claimants were partly allowed and all the opponents were held jointly and severally liable for the payment of compensation and the appellant-insurance company was ordered to pay the amount of compensation, as ordered in the impugned award, to the original claimants and then recover the same from the insured.
2. The brief facts leading to filing of this appeal are such that on 12.8.1997, the deceased Galabhai was going to Badoli for some social work as gratuitous passenger in tractor no.GJ-9E-976 and around 6.30 p.m., when the said tractor was passing from the sim of village Prithvipura, the opponent no.1 i.e. the driver of the said tractor had driven his tractor with full speed in rash and negligent manner violating the traffic rules and due to excessive speed and negligent driving of the tractor driver, the said tractor overturned and fell into a pit and the deceased fell down and the wheel of trolley no.GJ-9U-395 over the body of the deceased and thus the deceased sustained fatal injuries and succumbed to the injuries. Therefore, the claimants filed the claim petition claiming Rs.5,00,000/- towards compensation. Page 2 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024
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3. On issuance of notice, the original opponent nos.1 and 2 did not remain present. The appellant-insurance company appeared and resisted the claim petition. The issues were framed. The oral and documentary evidence was led. After considering the same and after considering the submissions made by learned advocates for the parties, the learned Tribunal passed the impugned judgment and award.
4. Hence, the appellant-insurance company has filed the present appeal.
5. Heard learned advocates for the parties. 5.1 The only contention raised by learned advocate for the appellant-insurance company and the only ground on which the appeal is filed is that though the learned Tribunal has held that the insurance company is not liable to pay the compensation as the deceased was travelling as a gratuitous passenger in the tractor, the learned Tribunal further held that at the first instance, insurance company shall first pay compensation to the claimant and thereafter it may recover the amount from the owner of the tractor by initiating execution proceeding upon this very award. He submitted that the insurance is a matter of contract between the owner of the vehicle and the insurance company and if the owner has Page 3 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined committed breach of conditions of the policy, then certainly the insurance company will not indemnify the wrong committed by the owner and when the owner of the vehicle has permitted the deceased to travel in his goods vehicle and committed breach of conditons of the policy and provisions of law, then certainly the owner is liable to pay the compensation to the victim and insurance company could not be saddled with liability. He has relied on judgments of this Court in the case of First Appeal No.1529 of 2015 and the Hon'ble Apex Court in the case of Balu Krishna Chavan V/s The Reliance General Insurance Company Ltd. & Ors. in civil Appeal arising out of S.L.P.(c)No.33638 of 2017.
6. Per contra, learned advocate for the original claimant/s submitted that the learned Tribunal has rightly come to the conclusion, after discussing the evidence produced on the record, the learned Tribunal has rightly held that keeping mere technicalities in mind, the claim petition cannot be dismissed and the right of compensation of the claimant/s cannot be wiped out. Therefore, the learned Tribunal has rightly held that the amount be paid to the claimant/s by the appellant-insurance company and thereafter it can recover the same from the insured. He, therefore, submitted to dismiss this appeal. He has relied on the judgments in First Appeal Nos.3345 of 2011 and 538 of 2009.
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7. Heard learned advocates for the parties and perused the material placed on record including the impugned judgment and award.
8. The learned Tribunal, has discussed the evidence led before it, considered the various judgments of the Hon'ble Apex Court and came to the conclusion that the driver was responsible for the accident, however, as there was breach of the terms of policy, the insurance company is not liable to pay the compensation. At the same time, the learned Tribunal ordered the insurance company to first pay the compensation and later on recover from the owner. There is no challenge regarding the negligence or quantum. Therefore, I am not going into those aspects.
9. As regards the only contention raised in this appeal that the learned Tribunal ought not to have passed the order of `pay and recover', it will be fruitful to refer to some of the judgments of the Hon'ble Apex Court on this aspect.
10. In the case of Khenyel V/s New India Assurance Company Limited and others reported in (2015)9 SCC 273, it is held by Hon'ble Supreme Court in paragraph 20 as under:
"20. This Court in Challa Upendra Rao [(2004) 8 SCC 517 :Page 5 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024
NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined 2005 SCC (Cri) 357] and Nanjappan [(2004) 13 SCC 224 : 2005 SCC (Cri) 148] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insured."
11. In the case of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v.
Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Page 6 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024
NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [ Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC Page 7 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined 224 : 2005 SCC (Cri) 148] wherein this Court held that :
(SCC p. 226, para 8) "8. ... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
12. In the case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, it is held in paragraphs 11 to 16 as under:
"11. In reply, the learned counsel for the respondents (insurance companies) supported the impugned order and contended that no case is made out to interfere in the impugned judgment. It was his submission that once it is held and rightly that the insurance company is not liable because the victims were travelling in the offending vehicle as "gratuitous passengers", there did not arise any occasion to pay the awarded sum to the claimants by the insurance company and nor the principle " pay and recover" could be applied against the insurance company in such circumstances thereby making them liable to pay the awarded sum to the claimants.
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12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellants (claimants).
13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent
3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.
14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two-Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur [National Insurance Co.
Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] , National Insurance Co. Ltd. v. Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] , National Insurance Co. Ltd. v. Kaushalaya Devi [National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467] , National Insurance Co. v. Roshan Lal [National Insurance Co. Ltd. v. Roshan Lal, (2017) 4 SCC 803] and National Insurance Co. Ltd. v. Parvathneni [National Page 9 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] .
15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 :
(2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [ Saju P. Paul v.
National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and Page 10 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined 26 as under : (Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
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26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Page 11 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024
NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
13. In the judgment in the case of Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755, the Hon'ble Apex Court has held in paragraph 10 as under:
"10. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the claimant(appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this court in National Insurance Co.Ltd. V.Swaran Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance Page 12 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh Kumar Singh, 2017 ACJ 1031 (SC). In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2, Appellant may, therefore, succeed in getting relief of direction to respondent No.2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
13.1 It is also relevant to refer to the judgment relied on by learned advocate Mr.Japee passed in First Appeal No.3345 of 2011 in the case of United India Insurance Company Ltd.through Vajabhai Ratabhai Dabhi since Decd. Through heirs and 2 others, wherein this Court has observed in paragraphs 5.2, 5.3, 5.4, 5.5 and 7 as under:
"5.2 Mr. Modi, learned advocate for the claimants has also relied on the decision of this Court in the case of Hemendrasinh Mansinh Jadav versus Sanjaybhai Govindbhai Dabhai and others reported in 2019 (2) GLR 983, where this Court has considered the provisions of the 'Act only Policy', more particularly in Paras : 36 37 and 43, which are quoted as under.
"36. Insurance Companies have been allowed no other defence except: (1) Use of vehicle for hire and reward not permit to ply such vehicle; (2) For organizing racing and speed testing; (3) Use of transport vehicle not allowed by permit; (4) Driver not holding valid driving license or have been disqualified for holding such license and (5) Policy Page 13 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined taken is void as the same is obtained by nondisclosure of material fact.
37. The Insurance Company cannot avoid the liability except on the grounds and not any other ground, which have been provided in Section 149(2). Hon'ble the Supreme Court has, while dealing with the provisions of Motor Vehicle Act, held that even if the defence has been pleaded and proved by the Insurance Company, they are not absolve from liability to make payment to the third party but can receive such amount from the owner-insured. The courts one after another have held that the burden of proving availability of defence is on Insurance Company and Insurance Company has not only to lead evidence as to breach of condition of policy or violation of provisions of Section 149(2) but has to prove also that such act happens with the connivance or knowledge of the owner. If knowledge or connivance has not been proved, the Insurance Company shall remain liable even if defence is available.
43. It seems that unfortunately insurance companies are either failed to realize above position or selectively submits that though they are liable to pay compensation to 3rd party, the occupant of the vehicle is "Occupant of the Vehicle and not a 3rd party". I fail to realize that Page 14 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined when there is no definition of `3rd party' in the Act and, thereby when we are talking about 3rd party we have to identify 1st party and 2nd party which are certainly with reference to the policy document being a contract between 1st party and 2nd party i.e. insured - owner of the vehicle and Insurance Company which enters into an agreement whereby Insurance Company accept the liability to indemnify the owner - insured against any liability which includes "any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place". It is also clear and obvious that the above words "including the owner of the goods or his authorized representative carried in the vehicle"
were absent in Section 95 of the M.V. Act, 1939 otherwise Section is pari-materia same with the Section 147 which goes to show that though there is several amendment in the M.V. Act, 1988, the basic principle of Statute is not changed so as to wipe out the basic principle of judicial pronouncement based upon the provision of M.V. Act, 1939 at the relevant time."
5.3 Mr. Modi, learned advocate for the claimants has also relied on the decision recorded on First Appeal No.1975 of 2005 and other Page 15 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined allied appeals dated 10.05.2019 in the case of United India Insurance Company versus Janubhai Radvabhai Vasava and others, more particularly Para : 7.2, which is quoted as under.
"7.2 Thus, it is clear from the tenor of clause
(x) of para 105 that, 'where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with sub-
section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears as land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by subsection (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal."
5.4 Mr. Modi, learned advocate for the claimants has also relied on Page 16 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined the judgment recorded on First Appeal No.673 of 2009 dated 24.04.2009 in the case of United India Insurance Co. Ltd. Versus Vishnubhai Somdas Patel & Ors., and has drawn the attention of this Court towards Paras : 11, which are quoted as under.
"11. On careful consideration of the facts and evidence adduced on record and submissions made by learned advocates of both sides, it is not in dispute that the deceased Vishnubhai had hired the tractor from the respondent No.3 Bhikhabhai Ramabhai Patel who was the owner of the tractor. Therefore, there is clear breach of the Insurance Policy at Exh.31 as the tractor was used for other then agriculture purpose by the insured. In view of the decision of this Court rendered in United India Insurance Co. Ltd. v. Manjulaben Purshottamdas Patel and Others(supra), the Insurance Company cannot be made liable for the payment of compensation to the claimants. However, as submitted by the learned advocate for the claimants relying upon the decision of the Apex Court in case of Shivraj v. Rajendra and Another (supra),the Insurance Company is directed to pay the compensation amount to the claimants at the first instance and recover the same from the owner of the offending tractor in accordance with law. Therefore, the impugned judgment and award passed by the Tribunal is modified to the extent that the appellant, original respondent No.3- Page 17 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024
NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined Insurance Company is not liable to pay compensation to the claimants. However, the Insurance Company shall pay the compensation as determined by the Tribunal in the impugned judgment and award to the original claimants - respondents Nos. 1/1 to 1/3 herein at the first instance and recover the same from the original opponent No.2- respondent No.3 herein, who is owner of the tractor involved in the accident by filing mere execution proceedings of the award without filing any further suit against the owner of the offending vehicle. Appellant insurance company Rest of the judgment passed by the Tribunal shall remain unaltered.
5.5 Mr. Modi, learned advocate for the claimants has submitted that even if in view of the judgment of Shivraj versus Rajendra and another reported in 2018 ACJ 2755, this Court if comes to the conclusion that if the Insurance Company is not liable to indemnify the award, then also, the principle of pay and recover can be applied and the Insurance Company may be directed to pay and then recover it from the owner of the offending vehicle.
7. The short question arises for determination of this Court in the present case is that, when the deceased person was going on the tractor and sitting on the fan wheel of the tractor and he died due to the accident, and it is an admitted position that the policy of the tractor is an 'Act Policy', the risk of only one person is covered. It is further found from the record that the risk of the passenger travelling in a goods vehicle is not covered by the insurance policy. It is also further transpired from the record that there is clear breach Page 18 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined of the insurance policy as the tractor was used other than the agricultural purpose by the insured and in view of the judgment rendered in United India Insurance Company Limited versus Manjulaben Purshottamdas Patel & Ors., reported in 1994(1) GLR 269, I found that the Insurance Company cannot be made liable for the compensation to the claimants, however, I am of the opinion that the provisions of the Motor Vehicles Act are beneficial legislation and relying on the decision of Hon'ble Apex Court in the case of Shivraj (supra), the Insurance Company is directed to pay the amount of compensation to the claimants at the first instance and then recover the same from the owner of the offending vehicle, in accordance with law."
13.2 The judgments cited by learned advocate Mr.Parikh for the appellant-insurance company are not helpful to the appellant in the facts of the present case.
14. In view of the above, it is required to be noted that the manifest object of the provisions of the MV Act is to ensure that the party, who suffers injuries due to the use of the motor vehicle, and may be able to get the damages for the injuries sustained/death. If the goods vehicle is used for carrying the passengers, against the terms of insurance policy, as is in the case on hand, the claimant/s cannot suffer for the technicalities of whether the owner/insurance company should pay the amount. As the vehicle is insured with the insurance company, the insurance company shall Page 19 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024 NEUTRAL CITATION C/FA/3741/2006 JUDGMENT DATED: 08/07/2024 undefined first pay the compensation and shall recover the same from the insured. The same order is passed by the learned Tribunal and the interest of the insurance company is secured, in this case, which is just and proper and not required to be interfered with and therefore the present appeal is dismissed with no order as to costs.
15. The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.
16. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 20 of 20 Downloaded on : Fri Jul 12 22:22:02 IST 2024