Manisha Madhukar Thorkar And Ors vs The Divisional Officer, H.D.F.C ...
2021 Latest Caselaw 7489 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

             INTERIM APPLICATION (ST) NO. 10229 OF 2021
                                 IN
                 FIRST APPEAL (ST) NO. 8631 OF 2019

Manisha Madhukar Thorkar and Ors.                        ... Applicants
           Vs.
The Divisional Officer, H.D.F.C. Ergo
General Insurance Co. Ltd. and Anr.                    ... Respondents

                               ...........
Mr. Pritesh K. Bohade for the Applicants.
Mr. Rahul Sanklecha i/b. Mr. Abhijit P. Kulkarni for the Respondent
No.1.
                                   ..........
                      CORAM: MADHAV J. JAMDAR, J.

(VACATION COURT)

DATE : 21st MAY, 2021.

(THROUGH VIDEO CONFERENCE)

P. C:-

1. The Applicants are the original Respondent Nos.1 to 6 in First

Appeal and they are claimants in M.A.C.P. No.694 of 2015 decided

by the learned Member, Motor Accident Claims Tribunal, Nashik.

The original Appellant is the Insurance Company and the Original

Respondent No.7 is the vehicle owner.

2. By the present Interim Application the Applicants are seeking

withdrawal of amount deposited by the Respondent with accrued

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interest.

3. The accident in question has taken place on 4 th May, 2015 in

which the deceased died and the Applicant No. 1 is his widow and

Applicant Nos. 2, 3 and 4 are minor children of the deceased and

Applicant Nos. 5 and 6 are parents of the deceased. It is submitted

by Advocate Bohade that Applicant Nos. 2 to 4 are minor children of

the deceased taking education and Applicant Nos. 5 and 6 are old

parents suffering from various diseases. The Applicant No.1 is

housewife. He submitted that due to COVID-19 pandemic the

Applicants are suffering severe financial difficulties. He further

submitted that the Applicant No. 6 i.e. father of the deceased was

working as labourer and he was earning very less amount. However,

due to pandemic situation it has become very difficult to get work

and the family is in fact starving and is not able to buy food and

there is no money for survival. He pointed out order dated 15 th July,

2019 passed by this Court in Civil Application No. 2397 of 2019 in

First Appeal (ST) No. 8631 of 2019 by which certain amounts are

allowed to be withdrawn by the Applicants.

4. Mr. Sanklecha, learned Counsel appearing for the original

Appellant strongly opposed the Interim Application for withdrawal.

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He submitted that in paragraph No. 17 of the impugned Judgment

and Award, it is specifically held that Insurance Company has proved

that they are not liable to pay any compensation to the claimant

under Motor Vehicles Act, 1981 and inspite of that Tribunal while

passing the final order held that the Insurance Company is liable to

pay jointly and severally amount of Rs.9,15,000/- to the

Respondents-Claimants and therefore, Application be dismissed.

5. A perusal of the order of Learned Member, Motor Accident

Claims Tribunal shows that although said finding is recorded in

paragraph No. 17, this aspect is specifically considered in paragraph

18 and 19 and it has been held on the basis of order passed by

Hon'ble Supreme Court that Insurance Company can be directed to

pay the amount giving it liberty to later recover the same from the

owner of the vehicle. The said paragraph Nos. 18 and 19 of the

impugned Judgment and Award are reproduced hereinbelow for

ready reference:-

"18. Now, the next question before me is "Can the Court yet compel the Insurance company to pay the amount giving it liberty to later recover the same from the owner of the vehicle?

In order to decide this point, I have relied on the judgment of Hon'ble Supreme Court in case of Manuara Khatun and ors. Vs. Rajesh Kumar Singh and others reported in Civil Appeal No. 3047 of 2017 arising out of SLP (C) No.

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5805/2013] Mamoni Saikia Mohanty & Ors. Vs. Rajesh Kr. Singh & Ors. [Civil Appeal No. 3065 of 2017 arising out of SLP (C)No. 791/2013] Following are the relevant paras reproduced below for ready reference:

"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 No. 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 No.1 in the same proceedings.

15) The aforesaid question, in our opinion, remains no more res integra. As we notice, it was subject matter of several decisions of this Court rendered by three Judge Bench and two Judge Bench in past, viz., National Insurance Co. Ltd. Vs. Baljit Kaur & Ors., (2004) 2 SCC 1, National Insurance Co. Ltd. vs. Challa Upendra Rao & Ors., (2004) 8 SCC 517, National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors., (2008) 8 SCC 246, National Insurance Co. Ltd. vs. Roshan Lal, [Order dated 19.1.2007 in SLP© No. 5699 of 2006], and National Insurance Co. Ltd.vs. Parvathneni & Anr., (2009) 8 SCC 785.

16) This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) 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 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".

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"19. The above judgments are squarely applicable to our case. Hence, relying on the above observation of Hon'ble Supreme Court, Insurance Company can be directed to pay first and recover later from the Owner."

6. I am informed that the Respondent No.7 who is the vehicle

owner has not filed any Appeal and although served in First Appeal

none appears for him. Therefore, it is clear that the Insurance

Company can pay the amount and recover the same from vehicle

owner. The Insurance Company has already deposited in this Court

the entire amount awarded with interest.

7. In the facts and circumstances of this case and as the

Applicant No.1 is housewife, Applicant Nos. 2, 3 and 4 are minor

children taking education, Applicant Nos. 5 and 6 are aged,

Applicant No. 6 is working as labourer and only earning member

and as there is no other source of income to the Applicants, I am

passing the following order :-

(a) The Applicant No.1 is permitted to withdraw an amount of

Rs.3,50,000/- with accrued interest without furnishing any security

but subject to outcome of the First Appeal.

(b) The Applicant No.5 and Applicant No. 6 are permitted to

withdraw an amount of Rs.50,000/- each without furnishing any

security but subject to outcome of the First Appeal.

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(c) The Motor Accident Claims Tribunal, Nashik is directed to invest

the remaining amount in a fixed deposit account of any Nationalized

Bank, initially for a period of three years and same shall be renewed

from time to time till hearing and final disposal of the appeal.

(d) The Applicant Nos. 1, 5 and 6 to file undertaking in this Court

stating that if the First Appeal is allowed and the order granting

compensation is set aside then, they will bring back the said amount

with 5% interest and deposit the same in this Court within a period

of three months after the disposal of the First Appeal.

(e) It is expressly made clear that the original Appellant i.e. the

Insurance Company can recover the entire principal amount

alongwith interest from the Original Respondent No.7-Vehicle

Owner.

(f) Civil Application is disposed of in the above terms.

(MADHAV J. JAMDAR, J.)

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