Gujarat High Court
The New India Assurance Co. Ltd vs Nagjibhai Karmanbhai Bharwad on 27 June, 2024
NEUTRAL CITATION
C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1351 of 2006
With
R/FIRST APPEAL NO. 1352 of 2006
With
R/FIRST APPEAL NO. 1353 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
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 ?
========================================================== THE NEW INDIA ASSURANCE CO. LTD.
Versus NAGJIBHAI KARMANBHAI BHARWAD & ORS.
========================================================== Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1 MR HARSHIT S TOLIA(2708) for the Defendant(s) No. 1 RULE SERVED for the Defendant(s) No. 2,3,4,5 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 27/06/2024 COMMON CAV JUDGMENT Page 1 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined
1. This group of appeals are filed by the appellant-
insurance company under Section 173 of the Motor Vehicles Act, 1988 (`MV Act' for short), being aggrieved and dissatisfied with the judgment and award dated 19.12.2005 passed by the Motor Accident Claims Tribunal (Aux.), Patan in MACP No.5402 of 2022 and allied matters, whereby the claim petitions of the opponents-claimants were partly allowed 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 by execution process as per law.
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 three claim petitions were filed by the original claimants stating that when the claimants were all standing on Radhanpur cross road on 12.5.1995, the tanker bearing registration no.GJ-12U-6556 took them as well as other persons and thereafter drove it in an extremely rash and negligent manner due to which, it overturned causing fatal injuries to Setuben (claimant of MACP No.5402 of 2002) and Page 2 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined injuries to the claimants of other claim petitions.
4. On issuance of notice, the appellant-insurance company appeared and resisted the claim petitions by contending that the deceased as well as injured were all illegal passengers in the tanker and that their risk was not required to be statutorily covered and not covered by the policy in question and no carriage of persons was permitted in the said tanker. However, the learned Claims Tribunal, passed the impugned judgment and award, which is challenged by way of these appeals.
5. Heard learned advocate Ms.Pathak for the appellant and learned senior advocate Mr.Harshit Tolia with learned advocate Mr.Parth Tolia for the opponents. 5.1 The main contention of the learned advocate Ms.Pathak for the appellant is that the risk of passengers was neither required to be covered nor as a matter of fact statutorily covered under the MV Act; that the risk of illegal passengers in a goods vehicle could not be fastened upon the appellant-insurance company; that the learned Tribunal has erred in holding that the appellant was required to satisfy the award and thereafter recover the amount from the owner of the vehicle; that in view of catena of judgments of the Page 3 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined Hon'ble Apex Court, there was no question of the appellant being liable to satisfy the award and then recover the same from the insured. She also submitted that regarding the quantum of compensation, the same is also not justifiable and the learned Tribunal ought not to have granted such compensation under different heads. She, therefore, submitted that the appeals be allowed and the appellant-insurance company be exonerated from the liability of paying the amount of compensation to the claimants. 5.2 Learned advocate Ms.Pathak submitted that there was no coverage of the claimants since the sitting capacity of only one including driver and as per police papers, claimants were sitting inside the tanker, thereby the driver and owner of the tanker committed breach of the provisions of the MV Act; further, the learned Tribunal has failed to accord adequate reasoning for not considering the technical defence of unauthorized passenger; that the findings rendered by the learned Tribunal in the impugned judgment are thoroughly misconceived, contrary to the provisions of MV Act and ratios being laid down by the Hon'ble Apex Court in various decisions. She submitted that when the insurer was not liable to pay the compensation in respect of passengers who were travelling in the vehicle unauthorizedly, then in exercise of powers conferred under Article 142 read with Article 136 of Page 4 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined the Constitution of India, the Hon'ble Apex Court can direct the insurance company to pay compensation for doing complete justice to the parties and the subordinate courts and the learned Tribunal cannot exercise such extraordinary powers. She, therefore, submitted that these appeals be allowed.
5.3 She has relied on the following decisions in support of her submissions:
1. New India Assurance Co.Ltd. V/s Darshana Devi reported in 2008 ACJ 1388 (SC).
2. United India Insurance Co.Ltd. V/s Anubhai Gopichand Thakare, reported in 2008 ACJ 213 (Bombay).
3. Oriental Insurance Company V/s Suresh Shankarbhai Valand decided by this Court in First Appeal No.2917 of 2010 on 10.3.2023.
4. Phool Singh V/s Pankhi reported in 2004 ACJ 843f (MP).
5. National Insurance Co.Ltd. V/s Chinnamma reported in 2004 ACJ 1909(SC).
5. Decision of this Court in First Appeal No.2929 of 2009 decided on 17.12.2013.
6. Iffco-Tokio General Insurance Co.Ltd. V/s Shankarlal and Ors. reported in 2009 ACJ 2618.
7. United India Insurance Company Ltd. V/s I.C.I.Abraham in MFA No.1346 of 2000(C).
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6. Per contra, learned senior advocate Mr.Tolia for the original claimants submitted that the learned Tribunal has rightly come to the conclusion, after discussing the evidence produced on the record, that it is undisputed fact that the vehicle in question was not a passenger vehicle but the driver of the vehicle allowed the passengers to travel therein and the accident in question has taken place due to negligence on the part of the opponent no.1 and it is proved by himself by lodgment of FIR and was corroborated by the panchanama of the place of incident. The opponent no.1- driver of the vehicle was deleted; the opponent no.2-owner did not turn up to contest the case before the learned Tribunal and the appellant-opponent no.3 appeared before the learned Tribunal and contested the case; learned senior advocate for the opponents submitted that the learned Tribunal has rightly held that keeping mere technicalities in mind, the claim petitions cannot be dismissed and the right of compensation of the claimants cannot be wiped out. Therefore, the learned Tribunal has rightly held that the amount be paid to the claimants by the appellant-insurance company and thereafter it can recover the same from the insured. He, therefore, submitted to dismiss these appeals. 6.1 In support of his submissions, learned senior advocate Mr.Tolia has relied on the following decisions: Page 6 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024
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1. Royal Sundaram Alliance Insurance Company V/s Kokolaben Wd/o Kanubhai Shanabhai Parmar reported in 2022 JX(Guj) 862.
2. Shamanna and Another V/s The Divisional Manager, The Oriental Insurance Co.Ltd. And Others, in Civil Appeal No.8144 of 2018 (Arising out of SLP(C) No.26955 of 2017.
3. New Insurance Co.Ltd. V/s Merambhai Ramjibhai Gohel & Ors. in First Appeal No.725 of 2016 dated 19.2.2024.
4. National Insurance Co.Ltd. V/s Swaran Singh & Ors., reported in 2004(1) GLH 691.
5. Mangla Ram V/s Oriental Insurance Company Limited reported in AIR 2018 SC 1900.
6. Manuara Khatun V/s Rajesh Kr.Singh V/s Mamoni Saikia Mohanty & Ors. V/s Rajesh Kr.Singh reported in AIR 2017 SC 1204.
7. Heard learned advocates for the parties and perused the material placed on record including the impugned common judgment and award.
8. The learned Tribunal, has discussed the evidence led before it i.e. the complaint filed by the original opponent no.1-driver himself and the panchanama and came to the conclusion that the opponent no.1-driver was driving the said Page 7 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined vehicle in question and he was negligent for the accident.
That the learned Tribunal has also rightly come to the conclusion that the passengers (claimants) were not authorized to travel in the said vehicle in question as it was a goods vehicle and not passenger vehicle and therefore, has rightly held that the insurance company is not liable to pay the compensation. However, as the said vehicle was insured with the appellant-insurance company, for the discussion stated in the impugned award, the learned Tribunal passed the award directing the appellant-insurance company to pay the amount of award first to the claimants and thereafter recover the same from the insured.
9. As regards the quantum, the learned Tribunal has considered the oral and documentary evidence led before it, and has rightly calculated the amount, applying the principles laid down in the case of Sarla Verma (Smt.) and others V/s Delhi Transport Corporation and another reported in (2009)6 SCC 121.
10. Now, as regards the main grievance of the appellant-insurance company with regard to the impugned award to pay to the claimants first and then recover the same from the insured, the submissions made by learned advocate Ms.Pathak for the appellant that the said order can Page 8 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined only be passed by the Hon'ble Apex Court and not by the subordinate courts cannot be accepted in view of the fact that the Hon'ble Apex Court has laid down certain guidelines in the case of National Insurance Company Ltd. V/s Swaran Singh and Others reported in (2004)3 SCC 297, in which it is held in paragraph 110 as under:
"Summary of findings
110. The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained Page 9 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be Page 10 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, Page 11 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) 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 Section 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 of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (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 Page 12 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
11. Further, 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 :
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."
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12. 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. 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. Page 14 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024
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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 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."
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13. 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.
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 Page 16 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined 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 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 Page 17 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined 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 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). *** Page 18 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined
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. 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 Page 19 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined 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] ."
14. 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 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)."
15. The above decisions still hold the field and Page 20 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024 NEUTRAL CITATION C/FA/1351/2006 CAV JUDGMENT DATED: 27/06/2024 undefined therefore, the learned Tribunal has rightly passed the impugned award. The judgments cited by learned advocate Ms.Pathak cannot be made applicable to the facts of these cases as the facts are different. The Hon'ble Apex Court as well as this Court, in numbers of decisions, has passed the order of `pay and recover'.
16. 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 goods vehicle is used for 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. 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.
17. The present appeals are dismissed with no order as to costs.
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18. 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.
19. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 22 of 22 Downloaded on : Thu Jun 27 22:25:02 IST 2024