Gujarat High Court
Dhirali (Minor) Vinodbhai Bist, Minor ... vs Dhanabhai Raisibhai Bhardiya Ahir on 4 July, 2024
NEUTRAL CITATION
C/FA/1652/2019 JUDGMENT DATED: 04/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1652 of 2019
With
R/FIRST APPEAL NO. 1643 of 2019
With
R/FIRST APPEAL NO. 1646 of 2019
With
R/FIRST APPEAL NO. 1649 of 2019
With
R/FIRST APPEAL NO. 1650 of 2019
With
R/FIRST APPEAL NO. 1651 of 2019
With
R/FIRST APPEAL NO. 1653 of 2019
With
R/FIRST APPEAL NO. 1654 of 2019
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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DHIRALI (MINOR) VINODBHAI BIST, MINOR THROUGH FATHER AND
GUARDIAN CHANDRASINH ALIAS RAMBHAI RAJPUT
Versus
DHANABHAI RAISIBHAI BHARDIYA AHIR & ORS.
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Appearance:
DHARAMVEERSINH J SOLANKI(7481) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR. RUSHANG D MEHTA(6989) for the Appellant(s) No. 1
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NEUTRAL CITATION
C/FA/1652/2019 JUDGMENT DATED: 04/07/2024
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MS. JINAL D SOLANKI(10006) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/07/2024
COMMON ORAL JUDGMENT
1. This group of appeals are filed under Section 173 of the Motor Vehicles Act, 1988 (`MV Act' for short), being aggrieved and dissatisfied with the judgment and award dated 26.10.2018 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad in MACP No.854 of 2008 and allied matters, on the ground of exoneration of the original opponent no.3-insurance company from payment of compensation to the claimants.
2. As all these appeals arise out of the common judgment and award, with the consent of the learned advocates for the parties, they are heard together and decided by this common judgment.
3. The brief facts leading to filing of these appeals are such that the claim petitions were filed for the injuries sustained by some claimants and the death of family member of some claimants in a vehicular accident which occurred on 27.5.2008 wherein the claimants were travelling in the Qualis Page 2 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 undefined Car No.GJ-04-D-8614 for the worship from Jamnagar to Dwarka and when they passed through near turn of Nagedi village, the driver of qualis car has driven his vehicle at an exaggerated speed without following traffic rules in rash and negligent manner so, the driver has lost his control over his car and the car turned turtle, because of which some claimants were severely injured and some were dead.
4. On issuance of notice, the original opponent nos. 1 and 2 did not appear before the learned Tribunal. However, the original opponent no.3-insurance company appeared and resisted the claim petitions. After considering the oral and documentary evidence, the learned Tribunal has passed the impugned common award which is challenged by the appellant by way of these first appeals, on the point of exoneration of the insurance company.
5. Heard learned advocates for the parties.
6. The only contention and the ground taken by the learned advocate for the appellant is that the original opponent no.3-insurance company was exonerated from the liability to pay the compensation. However, the claimants should be directed to be compensated by the insurance company and the insurance company should be permitted to recover the amount from the owner paid by them. Therefore, Page 3 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 undefined the learned Tribunal ought to have passed the order of `pay and recover' which is not done and therefore the learned Tribunal has erred in not doing so. He has submitted that there are a series of judgments of the Hon'ble Apex Court as well as this Court passing the said orders of `pay and recover.' He, therefore, prayed to allow these appeals.
7. Per contra, learned advocate for respondent no.3- insurance company has submitted that the learned Tribunal has rightly exonerated the insurance company from payment of compensation to the claimants and there cannot be any order of `pay and recover'. The owner and driver of the vehicle in question are held liable to pay the compensation and it is for them to pay the same. He, therefore, submitted to dismiss these appeals.
8. Heard learned advocates for the parties and perused the material placed on record including the impugned common judgment and award.
9. The only ground raised in these appeals is that the learned Tribunal has erred in not granting `pay and recover' to the insurance company, at the time of exonerating the insurance company and therefore, without discussing the judgment on merits, this Court has to consider the point of Page 4 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 undefined whether the order of `pay and recover' should be passed or not. In this regard, as the vehicle was insured with the insurance company and the policy was in existence, though the insurance policy is rightly exonerated from the liability to pay the compensation, the order of `pay and recover' should have been passed by the learned Tribunal.
10. A reference to the following decisions would be fruitful at this stage:
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 Page 5 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 undefined in Swaran Singh case [National Insurance Co. Ltd. v. 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 6 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 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."
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 8 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 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 9 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 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 10 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024
NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 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] ."
11. 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 11 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 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)."
12. 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 cycle, and may be able to get the damages for the injuries sustained/death. If the private car is being used as hire for reward and carrying the passengers, against the insurance policy, as is in the case on hand, the claimants 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 first pay the compensation and it is for the insurance company to recover from the owner, if it so wishes.
13. In view of the facts and circumstances of the present case and the law laid down by the Hon'ble Apex Court in the above decisions, these appeals are required to be allowed and accordingly allowed. The impugned judgment and award is modified to the extent that the opponent no.3- Page 12 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024 NEUTRAL CITATION C/FA/1652/2019 JUDGMENT DATED: 04/07/2024 undefined insurance company shall first pay the compensation and it is for the insurance company to recover from the insured, if it so wishes. Rest of the judgment and award remains as it is. Modified decree be drawn accordingly.
14. The respondent no.3-insurance company shall deposit the entire awarded amount along with costs and interest before the learned Tribunal within a period of six weeks from today. Once the amount is deposited, the order of disbursement will be passed by the learned Tribunal as per the impugned judgment and award.
15. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 13 of 13 Downloaded on : Mon Jul 08 21:05:26 IST 2024