Bombay High Court
New India Assurance Com. Ltd, Thr ... vs Smt. Meera Wd/O Ravindra Chauhan ... on 10 August, 2017
Bench: I.K. Jain
fa.22.10.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.22 OF 2010
New India Assurance Company Limited,
through the Manager,
Dr. Ambedkar Bhawan, MECL Premises,
4th Floor, Seminary Hills, Nagpur. .... Appellant
-- Versus -
01] Smt. Meera wd/o Ravindra Chauhan,
Aged about 28 years, Occupation : Household.
02] Shubham s/o Ravindra Chauhan,
Aged about 10 years, Occupation : Student.
03] Sumit s/o Ravindra Chauhan,
Aged about 5 years, Occupation : Nil.
04] Miss Shivani d/o Ravindra Chauhan,
Aged about 5 years, Occupation : Nil.
Respondents No.2 to 4 being minors through
Natural Guardian Mother, respondent no.1
R/o Behind Gaddigadam Police Station,
Gautam Nagar Buddha Vihar, Nagpur.
05] Yogesh s/o Manikrao Deshmukh,
Aged about major, Occupation : Owner,
R/o Indira Mata Nagar,
Gram Panchayat Nildoh,
Hingna, District Nagpur. .... Respondents
Mrs. Anita (Singh) Mategaonkar, Advocate for the Appellant.
None for the Respondents.
::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:04:25 :::
fa.22.10.jud 2
CORAM : KUM. INDIRA JAIN, J.
DATE : AUGUST 10, 2017.
ORAL JUDGMENT :-
This appeal takes an exception to the judgment and
award dated 24/08/2009 passed by the Motor Accident Claims
Tribunal, Nagpur (hereinafter referred to as 'the Tribunal' for
short) in Claim Petition No.374/2004 thereby saddling the liability
of payment of compensation initially on the insurer and then to
recover the same from the owner.
02] The facts giving rise to the appeal may be stated, in
brief, as under :
i. Appellant is an insurance company and respondent
no.2 in the petition under Section 166 of the Motor
Vehicles Act, 1988. Respondents are the legal
representatives of the original claimant/injured
Ravindra. It was the case of injured that on
06/01/2004, he was travelling in an auto-rickshaw
bearing No.MH-31/W/8038 from Sadar to
::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:04:25 :::
fa.22.10.jud 3
Khaparkheda. The driver of auto-rickshaw was
driving the vehicle in a rash and negligent manner
and so auto-rickshaw turned turtle at Sadar T Point.
He sustained injures. He was admitted in Kimmatkar
Nursing Home, Nagpur.
ii. Ravindra was working as Supervisor in Deepak
Constructions and getting Rs.5,000/- per month. The
impact of injuries caused due to vehicular incident
was so severe that he could not work and lost his
longevity. He claimed compensation of Rs.2.00 lacs on
all counts. During pendency of application, Ravindra
died and the legal representatives were brought on
record.
iii. Respondent no.1, owner of auto-rickshaw, was duly
served with summons. He did not appear. Application
proceeded ex parte against respondent no.1.
iv. Respondent no.2-insurance company filed written
statement [Exh.15] and resisted the claim. The
::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:04:25 :::
fa.22.10.jud 4
contention of injurer was that as driver was not
holding a valid and effective driving licence, there was
breach of terms and conditions of the policy.
According to insurance company, liability cannot be
fastened to insurer and the owner of auto-rickshaw
would be liable to pay compensation in such a case.
v. On the basis of rival pleadings, Tribunal framed issues
at Exh.24. The widow of injured PW-1 Meera
examined herself as claimant and relied upon series
of documents. Considering the evidence of the
witness, medical papers, police papers, terms and
conditions of insurance policy, Tribunal came to the
conclusion that driver was not holding a valid and
effective licence and in consequence thereof,
insurance company was held not liable. However,
applying the principle of pay and recover, insurance
company was directed to pay compensation first and
then to recover the same from the owner of auto-
rickshaw. It is this order, which is the subject matter
of appeal in the present case.
::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:04:25 :::
fa.22.10.jud 5
03] The learned Counsel for appellant submitted that the
Tribunal is not vested with the powers to direct the insurance
company to pay and recover and the impugned order is thus
unsustainable in law. The learned Counsel submits that it is
difficult to recover the amount of compensation from the owner
and in a such case insurance company faces lot of difficulties in
getting its amount back, though it is not liable to pay
compensation to the claimants in law.
04] So far as the applicability of principle of pay and
recover is concerned, now the law is well settled. It would,
however, differ from case to case and facts to facts whether
insurance company can be asked to pay compensation first and
then to recover the same from the owner. Considering the facts
of the present case, this Court does not find any fault with the
impugned order fastening the liability on the insurer. So far as
recovery is concerned, insurance company may adopt the proper
legal courses to get the amount back from the owner of the
vehicle. The difficulty expressed by the company cannot be a
ground to interfere in the appeal. Appeal deserves to be
dismissed. Hence, the following order :
::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:04:25 :::
fa.22.10.jud 6
ORDER
I. First Appeal No.22/2010 is dismissed.
II. No costs.
*sdw (Kum. Indira Jain, J)
