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United India Insurance Co. Ltd vs Ms. Yogita And Ors on 24 January, 2023

Author: Rekha Palli

Bench: Rekha Palli

                          $~81
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    MAC.APP. 18/2023
                               UNITED INDIA INSURANCE CO. LTD           ..... Appellant
                                              Through: Mr.Shankar N. Sinha, Adv

                                                    versus

                                 MS. YOGITA AND ORS                                   ..... Respondents
                                              Through:

                                 CORAM:
                                 HON'BLE MS. JUSTICE REKHA PALLI
                                               ORDER

% 24.01.2023 CM APPL. 3518/2023(early hearing) CM APPL. 3519/2023(modification of order dated 13.01.2023).

1. 1. These present applications preferred by the appellant seek early hearing of the appeal as also modification of order dated 13.01.2023 passed by this Court.

2. Learned counsel for the appellant submits that on 13.01.2023, he was unable to point out that recovery rights had already been granted to the appellant, the present appeal had been filed as it is the appellant's case that the compensation should be recovered directly from the driver and owner of the offending vehicle who were proceeded ex parte before the learned Tribunal.

3. Having perused the order dated 13.01.2023 as also the impugned award, I find merit in the appellant's plea that under the impugned award, the recovery rights have been granted to the appellant. The order dated 13.01.2023, accordingly, stands modified by correcting paragraph no.3, wherein it had been earlier recorded that no recovery Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.01.2023 17:39:36 rights had been granted to the appellant.

4. He further submits that even though this Court had adjourned the matter on 13.01.2023 at his request to enable the appellant to file additional documents, he has instructions to state that there are no additional documents available with the appellant as no evidence from the office of the RTO was led before the learned Tribunal. He, therefore, prays that the appeal be fixed up for consideration today itself.

5. The applications for early hearing and modification is allowed and the appeal is taken up for consideration today itself.

6. The next date fixed in the matter i.e. 03.03.2023 stands cancelled.

7. The present appeal seeks to assail the award dated 05.08.2022 passed by the learned Motor Accidents Claims Tribunal. Vide the impugned award, the learned Tribunal has while awarding compensation of Rs.51,23,000/- with interest @ 9 % p.a. in favour of the respondent nos.1 to 3/ the claimants and granted recovery rights to the appellant against respondent nos.4 & 5, the driver and the owner of the offending vehicle.

8. Learned counsel for the appellant submits that once the cheque issued by respondent no.5/owner of the offending vehicle towards premium of the insurance policy was dishonoured, no liability could be fastened on the appellant to pay compensation. He submits that in the light of this admitted position, the learned Tribunal ought to have directed that compensation should be paid by the respondent nos.3 & 4 alone.

9. Having considered the submissions of learned counsel for the appellant and perused the record, I find that once it is the own case of the appellant that no evidence was led by the appellant to show that the office of the RTO was informed about the dishonouring of the cheque towards premium payable under the insurance policy, the learned Tribunal cannot be faulted for directing the appellant to pay compensation to the claimants and then recover the same from the driver and owner of the offending vehicle. In this regard it may be useful to refer to a decision of the Apex Court in Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796 wherein, in similar circumstances, the Apex Court directed the insurer of the offending vehicle to pay the awarded sum to the claimant and then recover the same from the owner of the offending vehicle. Paragraphs13 to 16 of the aforesaid decision read as under:-

"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 Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.01.2023 17:39:36 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 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 Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.01.2023 17:39:36 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).

* * * * *

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) Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.01.2023 17:39:36 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] ."

10.In the light of the aforesaid, once the appellant has already been granted the right to recover the awarded amount from the owner and the driver of the offending vehicle, I find no infirmity in the impugned award.

11.The appeal being meritless is, accordingly, dismissed.

REKHA PALLI, J JANUARY 24, 2023 kk Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.01.2023 17:39:36