Karnataka High Court
The Branch Manager vs Annaraya S/O Gurangouda Biradar Anr on 17 January, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS FIRST APPEAL NO.30268/2011 (MV)
A/W
MISCELLANEOUS CIVIL NO.150535/2011
BETWEEN:
The Branch Manager
New India Assurance Co. Ltd., Bijapur
... Common Appellant
(By Sri R.V. Nadagouda, Advocate)
AND:
1. Annaraya S/o Gurangouda Biradar
Age: 39 years, Occ: Agriculture
R/o Darbar Galli, Bijapur
2. Girish
S/o Annappa @ Amanappa Chalawadi
Age: 43 years, Occ: Business
R/o Gandhi Nagar, Bijapur
... Common Respondents
(Sri Sanganagouda V. Biradar, Advocate for R1;
R2 - served)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act against the judgment and
award dated 03.11.2010 passed in MVC No.734/2007 on
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the file of the Motor Accident Claims Tribunal & Fast Track
Court-I/II, Bijapur, partly allowing the claim petition and
awarding compensation of Rs.1,36,000/- with interest at
6% p.a.
This Miscellaneous Civil No.150535/2011 is filed
under Order 41 Rule 1 Read With Section 151 of CPC
praying to, stay the operation of the impugned order dated
03.11.2010 in MVC No.734/2007, passed by the MACT and
FTC-I/II at Bijapur, pending disposal of this appeal.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This appeal by the insurance company is directed against the impugned judgment and award dated 03.11.2010 passed by the Motor Accident Claims Tribunal and Fast Track Corut-I/II, Bijapur (for short 'the Tribunal') in MVC No.734/2007, whereby the Tribunal has awarded compensation of Rs.1,36,000/- together with interest at 6% p.a. from the date of claim petition till deposit of entire amount towards the injuries sustained by the claimant - respondent No.1 in a road traffic accident that occurred on 11.05.2006.
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2. The brief facts giving rise to the above appeal are as under:-
Respondent No.1 - claimant filed a claim petition before the Tribunal inter alia contending that on 11.05.2006 when he was travelling in a Tum Tum bearing Reg. No.KA-28-A-1294, the driver of the said vehicle drove the same in a rash and negligent manner and dashed against a road side tree, on account of which the claimant sustained injuries. Therefore, he filed a claim petition, claiming compensation for the injuries sustained by him in the accident.
3. Before the Tribunal, the owner remained exparte and the insurance company entered appearance and contested the claim petition. It was specifically contended by the insurance company that the vehicle involved in the accident was a goods vehicle in which the claimant was a gratuitous passenger and the driver did not have a valid and effective driving licence and 4 consequently, the insurance company was not liable to pay compensation.
4. After trial, the Tribunal came to the conclusion that the claimant was entitled to compensation payable by the insurance company and consequently, awarded compensation in favour of the claimant.
5. Aggrieved by the impugned judgment and award fastening the liability upon the insurance company, the insurance company is before this Court by way of the present appeal.
6. The primary contention urged on behalf of the appellant-insurance company is that in the light of the undisputed fact that the vehicle involved in the accident was a goods vehicle and the fact that the appellant was a gratuitous passenger travelling in the said vehicle, the insurance company is not liable to pay compensation in favour of the claimant. In addition to the said contention, 5 the appellant has urged several other grounds in support of its contentions.
7. Per contra, learned counsel for claimant would support the impugned judgment and award. Learned counsel for the claimant submitted that even assuming that the claimant was a gratuitous passenger traveling in a goods vehicle, the insurance company would have to be made liable to pay compensation to the claimant by reserving liberty in favour of the insurance company to recover the same from the owner of the vehicle by invoking principle of 'pay and recover'. In support of its contention, learned counsel placed reliance on the judgment of the Apex Court in the case of Anu Bhanvara Etc., v. IFFCO TOKIO General Insurance Company Limited and others reported in AIR 2019 Supreme Court 3934.
8. I have given my anxious consideration to the rival submissions and perused the material on record. 6
9. As rightly contended by the learned counsel for the claimant, the Apex Court in the aforesaid decision in Anu Bhanvara's case has dealt with the question with regard to the liability of the insurance company to pay the compensation in respect of a gratuitous passenger travelling in a goods vehicle and by applying principle of 'pay and recover', the Apex Court has directed the insurance company to pay the compensation in favour of the claimant by reserving liberty in favour of the insurance company to recover the same from the owner of the offending vehicle. In the aforesaid case in Anu Bhanvara's the Hon'ble Apex Court held as follows:
"9. The next question is as to which of the respondents, that is the owner and driver, or the insurer of the vehicle, would be liable for payment of such compensation. As regard the liability for payment of compensation, it has been contended by the learned counsel for the appellants that since the vehicle was admittedly insured with the respondent No.1-insurance company, the principle of pay 7 and recover would be invoked even in case of a gratuitous passenger in a goods vehicle. The insurance company should thus be made liable for the payment of compensation to the appellants and in turn they would have the right to realise/recover the same from the owner and driver of the vehicle. In support of his submission, learned counsel for the appellants has relied on the following decisions of this Court, namely, Manuara Khatoon v. Rajesh Kumar Singh (2017) 4 SCC 796: (AIR 2017 SC 1204), Puttappa v. Rama Naik (Civil Appeal No.4397 of 2016, disposed of on 2nd April, 2018); Manager, National Insurance Co. Ltd. v. Saju P. Paul (2013) 2 SCC 41: (AIR 2013 SC 1064); New India Assurance Co. Ltd. v. Vimal Devi (Civil Appeal Nos.1578-1579 of 2004, disposed of on 5th October, 2010):
(Reported in 2011 (2) ACC 102 (SC)); National Insurance Co. Ltd. v. Challs Upendra Rao (2004) 8 SCC 517: (AIR 2004 SC 4882); New India Assurance Co. Ltd. v. C. M. Jaya (2002) 2 SCC 278: (AIR 2002 SC 651); Amrit Lal Sood v. Kaushalya Devi Thapar (1998) 3 SCC 744.8
10. Per contra, learned counsel for the respondent-insurance company has contended that since the claimants were gratuitous passengers in a goods vehicle, in which case the liability for payment of compensation for death or body injury to the passengers of such goods vehicle would not be covered, hence the principle of pay and recover would not apply. It has thus been contended that the order of the High Court is perfectly justified in law and calls for no interference by this Court. In support of her submission, learned counsel has relied on following decisions, namely, New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223: (AIR 2003 SC 607); National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1: (AIR 2004 SC 1340); National Insurance Co. Ltd. v. Kaushalya Devi (2008) 8 SCC 246: (AIR 2008 SC 2282); National Insurance Co. Ltd. v. Rattani (2009) 2 SCC 75: (AIR 2009 SC 1499); National Insurance Co. Ltd. v. Prema Devi (2008) 5 SCC 403: (2008 AIR SCW 2023);
Bharat AXA General Insurance Co. Ltd. v. Adani MANU/TN/6503/2018; Bajaj Allianz General Insurance Co. Ltd. v. Lal Singh (2015) SCC Online Del 7508.
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11. We have heard learned counsel for the parties and perused the record as well as the various decisions cited by learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case.
12. Accordingly, these appeals are disposed of with the direction that the respondent No.1 - insurance company shall be liable to pay the awarded compensation to the claimants in both the appeals. However, respondent No.1 - insurance company shall have the right to realize the said amount of compensation from the respondents No. 2 and 3 (driver and owner of the vehicle) in accordance with law."
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10. A perusal of the judgment of the Apex Court in the case of Anu Bhanvara will indicate that in the said case the claimants placed reliance on earlier several judgments of the Apex Court including the judgment in the case of Manuara Khatoon v. Rajesh Kumar Singh (2017) 4 SCC 796 and Manager, National Insurance Co. Ltd. v. Saju P. Paul (2013) 2 SCC 41.
11 Per contra, before the Hon'ble Supreme Court, the insurance company also placed reliance on several earlier judgments of the Apex Court itself including the case of New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 in order to contend that the insurance company would not be liable to pay compensation in favour of a gratuitous passenger traveling in a goods vehicle. After having referred to and considered the rival contentions as well as the earlier judgments passed by it, the Apex Court came to the conclusion that notwithstanding the fact that the insurance company would not be liable to pay compensation in favour of the claimant 11 who is a gratuitous passenger traveling in a goods vehicle, the principle of 'pay and recover' has to be made applicable in such a case. Consequently, the Apex Court has held that by applying the said principle of 'pay and recover', the insurance company would have to pay the compensation to the claimant by reserving liberty in favour of the insurance company to recover the compensation from the owner of the offending vehicle. Applying the judgment of the Apex Court to the peculiar facts and circumstances of the present case, I deem it just and proper to apply the principle of 'pay and recover' to the facts of the instant case and thereby direct the insurance company to pay the compensation to the claimant and thereafter recover the same from the owner of the offending vehicle. Under these circumstances, the contention urged on behalf of the appellant - insurance company in the present appeal is devoid of merit. I am therefore of the considered opinion that it is necessary to direct the insurance company to pay the compensation in favour of the claimant by reserving liberty in favour of the 12 appellant - insurance company to recover the compensation amount paid by it from the owner of the offending vehicle. I do not find any ground to interfere in the impugned judgment and award passed by the Tribunal except modifying it to the extent indicated above by reserving liberty in favour of the insurance company to recover the compensation paid by it to the claimants from the owner of the offending vehicle.
12 In view of the aforesaid discussion, I pass the following:
ORDER The appeal filed by the insurance company is partly allowed.
The impugned judgment and award dated 03.11.2010 passed in MVC No.734/2007 by the Motor Accident Claims Tribunal and Fast Track Court-I/II, Bijapur is hereby modified.13
The appellant - insurance company is hereby directed to pay compensation awarded by the Tribunal together with interest at the rate of 6% per annum from the date of claim petition till realization in favour of respondent No.1 - claimant.
Liberty is hereby reserved to the appellant - insurance company to recover the compensation paid by it from the owner of the offending vehicle.
The amount in deposit is directed to be transferred to the Tribunal for disbursement.
In addition to the same, having regard to the fact that the appeal is of the year 2011, the insurance company is directed to pay the remaining compensation in favour of the claimant within a period of six weeks from the date of receipt of a copy of this order.
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In view of the disposal of the appeal, Miscellaneous Civil No.150535/2011 does not survive for consideration and the same is dismissed.
Sd/-
JUDGE LG/RSP