United India Insurance Co Ltd vs Ashintabai Jeevan Tupe And Ors
2021 Latest Caselaw 5564 Bom

                                       1                     2004-2009-FA


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           FIRST APPEAL NO. 2004 OF 2009

United India Insurance Company Ltd.,
Through its Divisional Office,
Divisional Manager, Osmanpura,
Aurangabad                                                    .. Appellant
                                                       (Orig. Respondent no. 6)
     Versus

1] Ashintabai W/o Jeevan Tupe,
   Age : 40 years, Occu : Household,
   R/o : Pimpalwadi,
   Tq. and Dist. Beed

2] Jayashri D/o Jeevan Tupe,
  Age : 18 years,

3] Bajirao S/o Jeevan Tupe,
  Age : 11 years,

4] Kondiba S/o Girjappa Tupe,
  Age : 79 years, Occu : Agril.,
  R/o : As above

5] Pandurang S/o Tukaram Bhat,
   Age : 34 years, Occu : Jeep Driver,
   R/o : Bhadole, Tq. Hatkangle,
   Dist. Kolhapur
    .. [Appeal is abated as against Respondent
        no. 5 as per Order Dt. 22-06-2010]

6] Deelip S/o Shamrao Birgule,
   Age : 40 years, Occu : Truck Driver,
   R/o : Sambhaji Chowk, Islampur,
   Tq. Walwa, Dist. Sangali

7] Pandurang S/o Annappa Nandiwal,
   Age : Major, Occu : Business of Truck Transport,
   R/o : Bhadole, Tq. Hatkangle,
   Dist. Kolhapur,

8] Ramchandra S/o Rangrao Chavan,
   Age : Major, Occu : Transport Business,
   R/o : Sambhaji Chowk, Islampur,
   Tq. Walwa, Dist. Sangli



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                                            2                        2004-2009-FA


9] Divisional Manager, National Insurance
   Company Ltd., Hazari Chambers,
   Station Road, Aurangabad                                  .. Respondents
                                                     (Respondents no. 1 to 4 are Orig.
                                                     Claimants, Respondent no. 5 to 9
                                                     are Orig. Respondents no. 1 to 5)



                                       ...
                   Mr. S.V. Kulkarni, Advocate for appellant
    Mr. Abhijeet Thombre, Advocate h/f. Mr. S.S. Thombre, Advocate for
                             respondents no. 1 to 4
         Mr. A.B. Kadethankar, Advocate for respondents no. 6 and 8
Mr. A.D. Soman, Advocate h/f. Mr. D.V. Soman, Advocate for respondent no. 9
Appeal is abated as against respondent no. 5 as per Order dated 22-06-2010
                       Respondent no. 7 served - absent
                                       ...

                                               CORAM : ANIL S. KILOR, J.

DATE : 24-03-2021

ORAL JUDGMENT :

1. The appellant - insurance company has approached to this Court

by way of present Appeal raising challenge to the Judgment and Order passed

by the Motor Accident Claims Tribunal at Beed in Motor Accident Claim

Petition No. 193 of 2004 dated 21-07-2008.

2. I have heard learned counsels for the respective parties.

3. The brief facts of the present case are that the claimants in this

matter who are the respondents no. 1 to 4, are the legal representatives of

deceased Jeevan Kondiba Tupe, who died in a motor accident on 11-11-1997.

Claimant no. 1 is the widow of deceased whereas claimant no. 2 is their

daughter and claimant no. 3 is their son. Claimant no. 4 is the father of the

deceased.

3 2004-2009-FA

4. It is the case of the claimants that on 11-11-1997, the deceased

along with his family was travelling in a truck bearing number MH-10-A-9248

along with household articles for the work of cutting sugarcane and at that

time one Trax jeep bearing registration number MH-09-G-2526 came from the

opposite side and there was head-on collision between the truck and the jeep.

Due to the collision, the truck got turtled and the deceased was driven out of

the truck and he came underneath the cabin of the truck and died on the spot.

It is the further case of the claimants that the accident occurred on account of

rash and negligent driving of the driver of the truck as well as driver of the

jeep. Accordingly, the claim petition was filed restricting the claim to

`4,00,000/- though claiming to be entitled for `6,84,000/- towards

compensation.

5. The appellant - Insurance Company i.e. respondent no. 6 before

the Tribunal opposed the claim by filing written statement on the ground that

the truck was being driven by a person who was not holding legal and valid

license and for the purpose for which it was insured. It is the further case of

the appellant - Insurance Company that the truck cannot be used as vehicle for

carrying passengers and the risk of passengers is not covered. In the

alternative, it was submitted that the death was caused due to contributory

negligence of the driver of the truck and the jeep and, therefore, respondent

no.6 alone cannot be held liable for the compensation. The learned Tribunal

after scrutinizing the oral as well as documentary evidence brought on record

by the parties to the claim petition, allowed the claim petition and thereby held

4 2004-2009-FA

respondents no. 3 to 6 jointly and severally liable to pay an amount of

`4,00,000/- towards compensation. In view of the contributory negligence,

respondents no. 5 and 6 were directed to pay `2,00,000/- each.

6. The respondent no. 5 National Insurance Company has already

complied with said order dated 21-07-2008 and deposited the amount in the

Tribunal and the said amount is lying with the Tribunal. It is pertinent to note

that respondent no. 5 has not filed any Appeal, questioning the validity and

correctness of the impugned Judgment and Order.

7. The respondent no. 6 feeling aggrieved by the aforesaid

Judgment and Order dated 21-7-2008 passed by the Tribunal has approached

to this Court by way of present Appeal.

8. The appellant has deposited ` 1,00,000/- in this Court which was

allowed to be withdrawn by the claimants vide Order dated 01-07-2009.

Thereafter, this matter was admitted on 14-8-2009.

9. The learned counsel for the appellant had urged only one ground

that the truck was a goods carrier truck which was involved in the accident and

in which the deceased was travelling. It is submitted that the deceased was

travelling as a passenger which can be considered as a gratuitous passenger

who was travelling in a goods carriage. It is further submitted that the

insurance cover was not there for the passenger and, therefore, the claimants

cannot ask for any compensation from the appellant - Insurance Company or

the Insurance Company is not liable to pay any amount to the claimants. It is

submitted that if any entitlement is there of the claimants to receive the

5 2004-2009-FA

compensation, it is against the owner of the truck and not against the

Insurance Company.

10. Learned counsel for the appellant argues that since the claimants

are not entitled under the policy to receive any compensation from the

appellant - Insurance Company, in this matter the order of pay and recover

cannot be passed. It is therefore submitted that the Judgment and Order

impugned is erroneous and the same needs to be set aside to the extent the

directions are issued to the appellant - Insurance Company to pay the amount

of compensation. In support of his contentions, he has placed reliance on a

judgment of the Hon'ble Supreme Court of India in the case of National

Insurance Co. Ltd. Vs Prema Devi and others1.

11. Per contra, learned counsel appearing for the claimants supports

the Judgment and Order impugned in the present Appeal and points out that

the accident took place in 1997. The Judgment and Order was passed in

favour of the claimants in the year 2008 and till date, the claimants have

received only ` 1,00,000/- whereas the amount of ` 2,00,000/- is lying before

the Tribunal, which was deposited by the respondent no. 9 Insurance Company

herein.

12. He further points out that because of pendency of this Appeal, the

amount deposited before the Tribunal was not allowed to be withdrawn and in

this peculiar facts and circumstances, if now the claimants are asked to recover

the amount from the owner of the truck, it will be double jeopardy.

1     2008 AIR SCW 2023




                                          6                      2004-2009-FA

13. Shri. Thombre counsel for the claimants has placed reliance on a

judgment of the Hon'ble Supreme Court of India in the case of Manuara

Khatun and others Vs Rajesh Kr. Singh and others2 and submits that in identical

facts and circumstances, the Apex Court directed the Insurance Company to

pay and recover. He therefore, submits that the same mode may be adopted in

this matter also.

14. To consider the rival contentions of the parties, I have gone

through the record and Judgment of the Tribunal and also the judgments cited

by both the parties.

15. The only issues which falls for consideration is whether the

deceased was travelling in a goods carriage having no insurance cover for the

passenger and whether the Insurance Company is liable to pay the amount of

compensation even on the basis of pay and recover?

16. The said issues are no more res-integra after the judgment in

Manuara Khatun (supra) wherein after considering the various judgments of

the Apex Court, the Apex Court has observed that travelling in an offending

vehicle as a gratuitous passenger will not make the insurance company liable

to suffer liability arising out of the accident on the strength of the insurance

policy, however, keeping in view the benevolent object of the Act and other

relevant factors arising in the case, the directions to the Insurance Company to

pay the awarded sum to the claimants and then recover the said sum from the

2 AIR 2017 SC 1204

7 2004-2009-FA

insured in the same proceedings on applying principle of pay and recover can

be passed. Paragraph 17 of the said judgment is relevant which reads thus:

"17. Justice R.M. Lodha (as His Lordship then was and later became CJI speaking for the Bench held in paras 20 and 26 as under :

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).

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 MANU/SC/009/2004 : (2004) 2 SCC 1 and Challa Upendra Rao, MANU/SC/0779/2004 : (2004) 8 SCC 517 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 SLP © No. 20127 of 2011 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)

8 2004-2009-FA

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 shall be made by following the procedure as laid down by this Court in Challa Upendra Rao (supra)."

17. On the touchstone of the above referred principle of law, if the

evidence in the present case is considered, it will be revealed that the facts and

circumstances of the present case are identical to the facts and circumstances

of the case mentioned in the aforesaid judgment of the Apex Court. In that

view of the matter, I am of the considered view that though the appellant

Insurance Company cannot be held liable to suffer the liability in this matter on

the strength of the insurance policy, however, after considering the relevant

factors arising in this case and referred above, to cause the ends of justice,

directions to the Insurance Company to pay the amount of compensation to the

claimants and recover the same from the owner is warranted. Accordingly I

pass the following order.

                                         ORDER


I]                 The Appeal is partly allowed.


II]                The appellant - Insurance Company is directed to make the

payment of compensation as directed by the learned Tribunal vide judgment

9 2004-2009-FA

and order dated 21-7-2008 to the claimants after deducting the amount

already paid, within a period of two months from today.

III] The claimants are permitted to withdraw ` 2,00,000/- along with

interest accrued thereon, deposited by the respondent no. 9 herein, before the

Tribunal.

IV] It is made clear that the appellant Insurance Company is

permitted to recover the amount from the owner of the truck involved in the

accident.

V] The Appeal is disposed of. No order as to costs.

VI] In view of disposal of the Appeal, Civil Application no. 585 of

2009 stands disposed of.

[ ANIL S. KILOR ] JUDGE arp/