Bombay High Court

Ushabai Wd/O Rajabhau Aney vs Shri Ahasan Khan S/O Habib Ulla ... on 2 August, 2021

Bench: Pushpa V. Ganediwala

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH AT NAGPUR

                      FIRST APPEAL NO.1009 OF 2015

      Ushabai Wd/o Rajabhau Aney,
      Aged about 62 years, Occp- Nil
      R/o Plot No.M-25, Modenr Society,
      Subhadra Apartment, Pratap Nagar,
      Nagpur.
                                                                 .....APPELLANT
                                                                   (Orig. petitioner)


                                 ...V E R S U S...

 1. Shri Ahasan Khan s/o Habib Ulla Khan
    Aged about - Major, Occ- Owner,
    R/o Ashok Ward, Seoni,
    Dist. Seoni (M.P.)

 2. The Divisional Manager,
    United India Insurance Co. Ltd.,
    Seoni, through Nagpur D.O.,
    Shankar Nagar Chowk, W.H.C.
    Road, Dharampeth, Nagpur.
                                                         .... RESPONDENTS
 -----------------------------------------------------------------------------------
 Shri B.S. Mandhare, Advocate h/f Shri P.S. Mirache, Advocate for appellant.
 Shri B. Lahiri, Advocate for respondent no.2.
 -----------------------------------------------------------------------------------
                         CORAM:- PUSHPA V. GANEDIWALA, J.

DATED :- 2nd August, 2021.

ORAL JUDGMENT :

. This is the claimant's appeal against the judgment

and award dated 06.02.2013 in Claim Petition No.60 of 2007

passed by the learned Member of Motor Accident Claims

Tribunal, Nagpur, whereby the learned Tribunal partly

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allowed the claim and directed respondent no.1, the owner of

the offending vehicle to pay Rs.14,41,144/- to the claimant,

exclusive of the amount of no fault liability, with interest

@7.5% per annum from the date of order, till realization.

2. The facts, in nutshell, may be stated as under:

The appellant/claimant is mother of the deceased

Anirudha, who died in a motor vehicular accident on

18.12.2006. It is the case of the claimant that on 18.12.2006

the deceased had boarded a jeep bearing registration

No.MP-22/B-9173 at M.P. Bus Stand, Nagpur along with other

passengers. The said jeep left for Seoni at about 17:30 hours

from Nagpur. When it reached near territorial limits of

Chorbhauli on Nagpur-Jabalpur road, due to rash and

negligent driving, the driver lost control and hence the

vehicle turned turtle and consequently dashed against a road

side tree in which deceased Anirudha died on the spot along

with three other passengers.

3. The claim petition for Rs.13,00,000/- was filed

against owner and insurance company of the offending

vehicle. It is not disputed that the offending vehicle was duly

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and effectively insured with respondent no.2-Insurance

Company. Both the respondents i.e. owner and insurer of the

vehicle filed their respective written statements disputing the

claim.

4. Learned Tribunal framed necessary issues and

recorded evidence as adduced by the parties.

5. The petitioner examined herself and one Pramod

and brought on record the following documents ;

Form Comp AA (Exhi.31-A), copy of F.I.R. (Exh.32),

copy of Spot Panchanama (Exh.33), Inquest

Panchanama (Exh.34), Post-mortem Report (Exh.35),

Mark-sheet of SCC (Exh.37) and Salary slip of

deceased (Exh.48).

6. The respondents preferred not to examine any

witness in support of their pleadings. On the basis of material

on record, the learned Tribunal recorded the finding that on

18.12.2006 the deceased Anirudha died in the vehicular

accident involving jeep bearing No.MP-22/B-9173 due to rash

and negligent driving of driver of the said jeep. The learned

Tribunal held the owner of the vehicle liable to pay

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compensation to the claimant. The learned Tribunal

exonerated the respondent no.2-Insurance Company mainly

on the ground that there is a breach of terms and condition

of the insurance policy as it is proved that in the said

vehicle 11 passengers were being carried at the time of

accident while there was a permit of only 10 persons

including driver and it was used for commercial purposes.

7. I have heard Shri B.S. Mandhare, learned counsel

holding for Shri P.S. Mirache, learned counsel for the

appellant and Shri B. Lahiri, learned counsel for respondent

no.2-Insurance Company. Learned counsel for appellant

restricted his argument only with respect to the direction to

respondent no.2-Insurance Company to pay the compensation

amount and to recover the same from respondent no.1, the

owner of the offending vehicle. Learned counsel relied on

Amrit Paul Singh and another Vs. Tata AIG General Insurance

Co. Ltd. and others reported in (2018) 7 SCC 558 in support of

his submissions.

8. Learned counsel for respondent no.2-Insurance

Company opposed the prayer on the ground that the owner

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of the offending vehicle has committed fundamental breach

of policy by carrying more passengers than was permitted to

the said vehicle and as per the terms of the policy, the vehicle

was to be used for private use only. However, the owner used

it for carrying the paid passengers. The learned counsel

urged to dismiss the appeal.

9. The only question for the consideration of this Court

is "whether the direction in the nature of 'pay and recover'

can be issued against respondent no.2-Insurance Company in

the facts and circumstances of the present case?"

10. It cannot be disputed that, there are series of

judgments of Hon'ble Apex Court and this Court wherein the

directions for 'pay and recover' have been issued. In the case

of United India Insurance Co. Ltd. Vs. K.M.Poonam and

others reported in 2011 ACJ 917 the Hon'ble Supreme Court

relied on the case of National Insurance Co. Ltd. Vs. Baljit

Kaur reported in (2004) 2 SCC 1 and in the similar facts and

circumstances directed the insurance company to deposit the

total amount of compensation awarded to the claimants with

liberty to the insurance company to recover the same. In that

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case the jeep was carrying overloaded passengers against the

capacity of 6 passengers.

11. The Hon'ble Apex Court in the case of Amrit Paul

Singh And Another Vs. Tata AIG General Insurance Company

Limited And Others, reported in (2018) 7 SCC 558 in para 24

has held that as nothing has been brought on record by the

insured to prove that he had a valid permit of the vehicle, in

such a situation, the onus cannot be cast on the insurer. The

Hon'ble Apex Court directed the Insurance Company to pay

the compensation amount to the claimants with interest with

the stipulation that the insurer shall be entitled to recover the

same from the owner and the driver. The Hon'ble Apex Court

stated that the said directions are in consonance with the

principles as stated in National Insurance Co. Ltd. Vs. Swaran

Singh, reported in (2004) 3 SCC 297 and other cases

pertaining to 'pay and recover' principle.

12. In the case in hand, evidently, the insurance policy

covered 10 persons including driver and the appellant -owner

was held to have carried 11 persons at the relevant time. It is

nobody's case that the cause of the accident was only because

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the offending vehicle was found carrying one more passenger

than the limits of passengers insured. Further, the contention

is that the vehicle was used for carrying the paid passengers

which is nothing but the breach of the condition in the policy.

Again, it is nobody's case that the cause of the accident was

only because the vehicle was used for the hire purposes. In

this backdrop, this Court is of the considered view that,

Respondent No.2-the insurer of the offending vehicle cannot

shirk its foremost liability to pay the compensation to

dependents of the deceased, who was occupant of the vehicle

meaning thereby third party vis-vis insurance company. In

the light of the above discussion and by relying on the

judgements in the case of K. M. Poonam (supra) and Amrit

Paul Singh (supra), respondent No.2-Insurancy Company is

directed to pay the entire amount of compensation to the

claimant along with interest, and the respondent No.2-

Insurance Company would be entitled to recover the same

from the owner of the offending vehicle.

13. The learned Tribunal has failed to consider this

aspect of the matter in the impugned judgment. Accordingly,

the impugned judgment and award dated 06.02.2013 passed

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by the learned Member, Motor Accident Claims Tribunal - 4,

Nagpur in Claim Petition No. 60/2007 stands modified as

under :

i) Respondent No.2 - Insurance Company shall pay

enhanced compensation amount, i.e., Rs. 14,44,144/- to

the claimant along with interest @ 7.5% per annum from

06.02.2013 till payment of the entire amount which is

exclusive of amount towards 'No Fault Liability'.

ii) After payment of enhanced compensation,

respondent No.2 - Insurance Company is at liberty to

recover the same from the registered owner, i.e.,

respondent No.1. through execution proceedings.