Bombay High Court
The United Ins Co Ltd Thr ... vs Laxman @ Baburao Sambhaji Mane And ... on 1 October, 2021
Bench: R. G. Avachat
First Appeal No.1/2006
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1 OF 2006 WITH
CIVIL APPLICATION NO.69 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Mangalabai w/o Mukundrao Mane,
Aged 32 years, Occu. Agri. &
Labourer, R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Shaikh Javed s/o Shaikh Gaffar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1.
Shri S.B. Ghatol Patil, Advocate for respondent No.2.
.......
WITH
FIRST APPEAL NO. 2 OF 2006 WITH
CIVIL APPLICATION NO.70 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
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First Appeal No.1/2006
:: 2 ::
VERSUS
1. Rangnath s/o Gyanuji Mane
Aged 35 years, Occu. Agri.,
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Ramrao s/o Gyanuji Mane,
Aged 32 years, Occu. Agri.,
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
3. Anandrao s/o Gyanuji Mane,
Aged 30 years, Occu. Agri.,
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
4. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondents No.1 to 3
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.4.
.......
WITH
FIRST APPEAL NO. 3 OF 2006 WITH
CIVIL APPLICATION NO.71 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Laxman @ Baburao s/o Sambhaji Mane
Aged 60 years, Occu. Agri. & Labour,
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First Appeal No.1/2006
:: 3 ::
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.2.
.......
WITH
FIRST APPEAL NO. 4 OF 2006 WITH
CIVIL APPLICATION NO.72 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Ramrao s/o Shankarrao Mane,
Aged 60 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Ashok s/o Ramrao Mane,
Aged 35 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
3. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
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First Appeal No.1/2006
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.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1 and 2
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.3.
.......
WITH
FIRST APPEAL NO. 5 OF 2006 WITH
CIVIL APPLICATION NO.73 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Pandurang s/o Sitaram Mane,
Aged 40 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Vasant s/o Sitaram Mane,
Aged 37 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
3. Dayaand s/o Sitaram Mane,
Age 34 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
4. Vimalbai w/o Dhondiram Mane,
Age 35 years, Occu. Agri.,
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
5. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
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First Appeal No.1/2006
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.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1 to 4
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.5.
.......
WITH
FIRST APPEAL NO. 6 OF 2006 WITH
CIVIL APPLICATION NO.74 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Digambar s/o Wamanrao Mane,
Aged 59 years, Occu. Agri. & labour,
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Chandrakant s/o Digambar Mane,
Aged 34 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
3. Vaijnath s/o Digambar Mane,
Aged 32 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
4. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1 to 3
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First Appeal No.1/2006
:: 6 ::
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.4.
.......
WITH
FIRST APPEAL NO. 7 OF 2006 WITH
CIVIL APPLICATION NO.75 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Rajabhau s/o Vithalrao Sakhare,
Aged 45 years, Occu. Agri.
R/o Dharmapur,
at present at Parbhani
2. Udhav s/o Vithalrao Sakhare,
Aged 40 years, Occu. Agri.
R/o as above.
3. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1 and 2
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.3.
.......
WITH
FIRST APPEAL NO. 8 OF 2006 WITH
CIVIL APPLICATION NO.76 OF 2006
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First Appeal No.1/2006
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United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Janardhan s/o Shankarrao Mane,
Aged 35 years, Occu. Agri.
R/o Jawla (Kh.),
Tq. Jintur, District Parbhani
2. Ramchandra s/o Shankarrao Mane
Aged 30 years, Occu. & r/o as above.
3. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1 and 2
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.3.
.......
WITH
FIRST APPEAL NO. 9 OF 2006
United India Insurance Co. Ltd.
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road,
Nanded, District Nanded ... APPELLANT
VERSUS
1. Parmeshwar s/o Chudaji Walse
Aged 50 years, Occu. Agri. & Labour
R/o Deogaon, Tq. Purna,
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First Appeal No.1/2006
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District Parbhani
2. Gangadhar s/o Chudaji Walse
Aged 40 years, Occu. & r/o as above.
3. Ramchandra s/o Chudaji Walse
Age 35 years, Occu. & r/o as above.
4. Shaikh Javed s/o Shaikh Gafar,
Aged major, Occu. Business,
R/o Near Shahid Chowk,
Mondha Road, Basmath,
Tq. Basmath, Dist. Parbhani ... RESPONDENTS
.......
Shri A.B. Gatne, Advocate for appellant
Shri G.S. Rane, Advocate for respondent No.1 to 3
Shri U.M. Maske Patil, Advocate holding for
Shri S.B. Ghatol Patil, Advocate for respondent No.4.
.......
CORAM : R. G. AVACHAT, J.
Date of reserving judgment : 21st September, 2021
Date of pronouncing judgment : 1st October, 2021
JUDGMENT:
These appeals are being decided by this
judgment, since common questions of facts and law arise
therein. Moreover, these appeals arise out of one and the
same accident. For the sake of convenience, pleadings and
evidence in First Appeal No.1/2006 and 6/2006 are referred
to.
FACTS :-
2. A goods carriage, tempo bearing No.MWZ-5676
First Appeal No.1/2006
:: 9 ::
was on its way to Mahurgad on 6/4/2001. Foodgrains bags
were being carried therein. About 22 persons were said to
have been traveling along with their foodgrain bags in the said
goods carriage. Mahurgad is a religious place. The persons
traveling therein were on their way to participate in the
religious activities (Saptah) at Mahurgad. The foodgrains
were being carried so as to provide food/ meals to
participants there. The goods carriage met with the accident
before it reached the Gad (Hill). It turtled and fell into a deep
valley, resulting into deaths of 8 of the passengers traveling
therein. Others suffered multiple injuries. Nine Motor
Accident Claim Petition (Petitions) were preferred by legal
representatives of the deceased and the injured as well. The
Motor Accident Claims Tribunal, Parbhani (Tribunal), vide its
judgment and order dated 29/8/2005 in the respective
petitions, grated varied amount of compensation. The owner
of the goods carriage and insurer thereof were directed to
pay, jointly and severally, the amount of compensation to the
claimants concerned. The insurer of the goods carriage,
united India Insurance Co. Ltd., therefore, preferred all these
appeals.
3. Heard. Learned counsel for the appellant
Insurance Company would submit that, the vehicle involved in
First Appeal No.1/2006
:: 10 ::
the accident was a goods carriage. No person is permitted to
travel therein except the driver. There is no iota of evidence
to indicate the deceased and injured were travelling as owners
or representative/s of owners of the foodgrains/ goods carried
in the goods carriage. The owner of the goods carriage has
unequivocally admitted that there was a contract between him
and Mahant of the temple on the Gad for carriage of
foodgrains. He would further submit that, all the persons
were in the body of the goods carriage. None of them was in
the cabin. According to him, the insurer of the goods carriage
has, therefore no liability to pay compensation. The Tribunal
erred in passing awards against the appellant - insurer.
Learned counsel relied on the judgment of the Apex Court in
case of National Insurance Co. Ltd. Vs. Chollety Bharatamma
& ors. [ (2008) 1 SCC 423 ].
4. Learned counsel for the claimants would, on the
other hand, submit that, the pleadings and evidence do make
out a case that the deceased and the injured were traveling
along with their goods in the ill-fated goods carriage. They
had occupied seat in the body of the vehicle only with a view
to guard/ protect the goods. According to learned counsel,
the insurer, therefore, would not be allowed to escape of its
liability to pay the compensation. He would further submit
First Appeal No.1/2006
:: 11 ::
that, the principle 'pay and recover' has now attained the
status of a law. He, therefore, urged in the alternative to
direct the appellant/ insurer to satisfy the awards and recover
the amount from the owner of the vehicle. He placed reliance
on the following authorities :
(1) Anu Bhanvara Etc. Vs. IFFCO Tokio General Insurance
Company Limited & ors. [ AIR 2019 SC 3934 ]
(2) New India Assurance Company Ltd. Vs. Punjabai Bansi
Solase & ors. [ 2019(2) Mh.L.J. 172 ]
(3) United India Insurance Co. ltd. Vs. Suresh K.K. & anr.
[ AIR 2008 SC 2871 ]
(4) National Insurance Co. Ltd. Vs. Cholleti Bharatamma &
ors. [ (2008) 1 SCC 423 ]
(5) Balasaheb Shamrao Salunkhe, deceased through Lilavati
B. Salunkhe & ors. Vs. Laxmibai Yashwant Jadhav & ors.
[ 2009(6) Mh.L.J. 141 ]
(6) Bhika Cullianji and Company, Bombay Vs. Avon Electric
Company, Bombay & ors. [ 1995(1) Bom.C.R. 377 ]
(7) Sarwan Singh Vs. State of Punjab
[ 2003 Cri.L.J. 21 ]
(8) Shivawwa & anr. Vs. Branch Manager, National India
Insurance Company Ltd. & anr. [ 2019(1) Mh.L.J. 1 ]
5. Learned counsel for the vehicle owner reiterated
the submissions made by learned counsel for the claimants.
He too relied on the following authorities to ultimately urge for
dismissal of the appeals.
First Appeal No.1/2006
:: 12 ::
(1) Oriental Insurance Company Ltd. Vs. Pushpa wd/o
Ankush Buche, (Since Dead) & ors.
[ (2017) 7 Mh.L.J. 686 ]
(2) New India Assurance Company Vs. Satpal singh & ors.
[ (2000) 1 SCC 237 ]
(3) Ramesh Kumar Vs. National Insurance Co. Ltd. & ors.
Etc. Etc. [ (2001) 6 SCC 713 ]
6. Mahurgad is a religious place. During the relevant
days, religious festivities were underway at the Mahurgad
Temple. The ill-fated goods carriage was on its way to the
Gad carrying foodgrains therein. 20 to 22 persons were also
traveling therein to participate in religious activities. The
goods carriage met with the accident just before it reached
the Gad. It fell into a deep valley. The persons traveling
therein suffered multiple injuries. Some of them succumbed
thereto. Legal representatives of the deceased and the
injured as well filed petitions for compensation, contending
that, they were carrying their respective goods/ grainbags to
Mahurgad, as food was to be supplied to persons participating
in religious activities. All the persons traveling therein were
from one and the same village, Jawla (Kh.), Taluka Jintur,
District Parbhani. It was their case that the goods carriage
was hired by two of the villagers. There is, however, no
documentary evidence in proof of their claim that the
foodgrains in the goods carriage really belonged to them and
First Appeal No.1/2006
:: 13 ::
they had hired the tempo for carrying it to the Gad. The
foodgrains were in the gunny bags. From the nature thereof,
it could not be said that any of the persons traveling therein
was required to travel with those goods in protection thereof.
7. Legal position in this regard is well settled. In
case of Chollety Bharatamma (supra), it has been observed :-
"4. the said provision underwent an amendment
in the year 1994 by the Motor Vehicles
(Amendment) Act, 1994 which reads as under :
"147. Requirements of policies and limits of
liability:-
(1) in order to comply with the requirements
of this Chapter, a policy of insurance must be a
policy which -
(a) * * *
(b) insures the person or classes of persons
specified in the policy to the extent specified in
sub-section (2) -
(i) against any liability which may be
incurred by him in respect of the death of or
bodily injury to any person, including owner of
the goods or his authorised representative
carried in the vehicle or damage to any
property of a third party caused by or arising
out of the use of the vehicle in a public place.
(ii) * * *
8. The Act does not contemplate that a goods
carriage shall carry a large number of passengers
First Appeal No.1/2006
:: 14 ::
with small percentage of goods as considerably the
insurance policy covers the death or injuries either
of the owner of the goods or his authorised
representative.
10. In Asha Rani (2003) 2 SCC 223, having
regard to various definitions involving the legal
question, it was held :
23. ....
24. ....
25. Section 147 of the 1988 Act, inter alia,
prescribes compulsory coverage against the death of
or bodily injury to any passenger of public service
vehicle. Proviso appended thereto categorically
states that compulsory coverage in respect of drivers
and conductors of public service vehicle and
employees carried in a goods vehicle would be
limited to the liability under the Workmens
Compensation Act. It does not speak of any
passenger in a goods carriage.
26. In view of the changes in the relevant provisions
in the 1988 Act vis-a-vis the 1939 Act, we are of the
opinion that the meaning of the words any person
must also be attributed having regard to the context
in which they have been used i.e. a third party.
Keeping in view the provisions of the 1988 Act, we
are of the opinion that as the provisions thereof do
not enjoin any statutory liability on the owner of a
vehicle to get his vehicle insured for any passenger
travelling in a goods vehicle, the insurers would not
be liable therefor.
27. . . . . . . . .
28. . . . . . . . . .
First Appeal No.1/2006
:: 15 ::
12. Yet again in New India Assurance Co. Ltd.
Vs. Vedwati & Ors. [(2007) 3 SCALE 397] this
Court held :
9. . . . The difference in the language of "goods
vehicle" as appearing in the old Act and "goods
carriage" in the Act is of significance. A bare reading
of the provisions makes it clear that the legislative
intent was to prohibit goods vehicle from carrying
any passenger. This is clear from the expression "in
addition to passengers" as contained in definition of
"goods vehicle" in the old Act. The position
becomes further clear because the expression used is
"good carriage" is solely for the carriage of goods.
Carrying of passengers in a goods carriage is not
contemplated in the Act. There is no provision
similar to Clause (ii) of the proviso appended to
Section 95 of the old Act prescribing requirement of
insurance policy. Even Section 147 of the Act
mandates compulsory coverage against death of or
bodily injury to any passenger of "public service
vehicle". The proviso makes it further clear that
compulsory coverage in respect of drivers and
conductors of public service vehicle and employees
carried in goods vehicle would be limited to liability
under the Workmen's Compensation Act, 1923 (in
short 'WC Act"). There is no reference to any
passenger in "goods carriage".
10. The inevitable conclusion, therefore, is that
provisions of the Act do not enjoin any statutory
liability on the owner of a vehicle to get his vehicle
insured for any passenger travelling in a goods
carriage and the insurer would have no liability
therefor.
19. It is now well settled that the owner of the
goods means only the person who travels in the
cabin of the vehicle.
First Appeal No.1/2006
:: 16 ::
The Act does not contemplate that a goods carriage
shall carry a large number of passengers with small
percentage of goods as considerably the insurance policy
covers the death or injuries either of the owner of the goods
or his authorised representative.
8. Admittedly, the vehicle involved in the accident
was a goods carriage. The insurance cover granted to it was
in the nature of "act only Policy". As such, the policy of
insurance did not cover risk of passengers traveling therein.
There is also no evidence to indicate that the deceased or the
injured persons were traveling in the capacity as owners of
the goods (foodgrains). Foodgrain is not such a commodity
requiring protection while being transported. The case of the
claimants that the persons were traveling in the goods
carriage only with a view to protect/ guard the goods therein
is, therefore, unacceptable. None of the so called owners of
the goods / foodgrains was in the cabin when the vehicle met
with the accident. Thus, the conclusion can be drawn that the
appellant Insurance Company is not liable to pay
compensation.
9. Learned counsel for the owner of the goods
First Appeal No.1/2006
:: 17 ::
carriage placed reliance on the Apex Court judgment in case
of Satpal Singh (supra), which is no longer a good law in view
of larger Bench judgment of the Apex Court in case of Asha
Rani (supra).
10. Learned counsel for the claimants would submit
that, the appellant insurer could be directed to pay first and
then recover the amount of compensation from the owner of
the goods carriage. He relied on the citations referred to
above.
11. In case of Anu Bhanvara Etc. (supra), it has been
observed :-
"11. We have heard learned counsel for the
parties and perused the record as well as the
various decisions cited by learned counsel for the
parties. The insurance of the vehicle, though as a
goods vehicle, is not disputed by the parties. The
claimants in the present case are young children
who have suffered permanent disability on
account of the injuries sustained in the accident.
Thus, keeping in view the peculiar facts and
circumstances of this case, we are of the
considered view that the principle of "pay and
recover" should be directed to be invoked in the
present case."
12. The aforesaid observations do indicate that the
principle of "pay and recover" was invoked in the facts and
First Appeal No.1/2006
:: 18 ::
circumstances of the said case.
13. Same is the case of the judgment in Suresh K.K.'s
case (supra). It has been observed in paragraphs No.15 and
16 as under :
15. The question which arises for our
consideration, however, is keeping in view the
fact that the accident took place on or about
13/8/1999, and further in view of the fact that the
claimant was a coolie worker as to whether he
would be in a position to realise the dues from the
owner of the vehicle, we think not.
16. Keeping in view the aforementioned facts
and circumstances into consideration, we are of
the opinion that with a view to do complete
justice between the parties, a direction should be
given to the appellant to pay the amount to the
claimant and realise the same from the owner of
the vehicle. Such a direction would, in our
opinion, serve the ends of justice.
14. In case of Shiivawwa (supra), it has been
observed :-
11. Assuming for the sake of argument that the
insurance company was not liable to pay
compensation amount awarded to the claimants as
the offending tractor was duly insured, the insurer
would be still liable to pay the compensation
amount in the first instance with liberty to recover
the same from the owner of the vehicle (respondent
No.2), in light of the exposition in the case of
National Insurance Co. Vs. Swarn Singh and ors.,
2004 Mh.L.J. Online (S.C.) 24 = (2004) 3 SCC
297. In paragraph 110 of the said decision, a three-
First Appeal No.1/2006
:: 19 ::
Judge Bench of this Court observed thus :
..............
(x) Where on adjudication of the claim
under the Act the tribunal arrives at a
conclusion that the insurer has satisfactorily
proved its defence in accordance with the
provisions of section 149(2) read with sub-
section (7), as interpreted by this Court
above, the Tribunal can direct that the insurer
is liable to be reimbursed by the insured for
the compensation and other amounts which it
has been compelled to pay to the third party
under the award of the tribunal. Such
determination of claim by the Tribunal will
be enforceable and the money found due to
the insurer from the insured will be
recoverable on a certificate issued by the
tribunal to the Collector in the same manner
under section 174 of the Act as arrears of
land revenue. The certificate will be issued
for the recovery as arrears of land revenue
only, if, as required by sub-section (3) of
section 168 of the Act the insured fails to
deposit the amount awarded in favour of the
insurer within thirty days from the date of
announcement of the award by the tribunal.
(xi) The provisions contained in sub-
section (4) with proviso thereunder and sub-
section (5) which are intended to cover
specified contingencies mentioned therein to
enable the insurer to recover amount paid
under the contract of insurance on behalf of
the insured can be taken recourse of by the
Tribunal and be extended to claims and
defences of insurer against insured by,
relegating them to the remedy before, regular
court in cases where on given facts and
circumstances adjudication of their claims
First Appeal No.1/2006
:: 20 ::
inter se might delay the adjudication of the
claims of the victims.
(emphasis supplied)
12. However, in the facts of the present case, we
have no hesitation in taking a view that consequent
to affirmation and restoration of the finding of fact
recorded by the Tribunal regarding the factum of
deceased had travelled along with his goods at the
time of accident, the insurer would be obliged to
satisfy the compensation amount awarded to the
claimants.
15. On the same lines are the other judgments relied
on by the learned Advocate.
16. The question is whether the claimants, as of right,
can claim the relief of 'pay and recover'. In my view, the
answer is "No".
17. In the result, the appeals succeed. The awards
passed against the appellant Insurance Company are set
aside. The facts of the present case, however, indicate that
the appellant Insurance Company has deposited the entire
amount of compensation under the impugned awards. The
claimants were permitted to withdraw 50% thereof. In these
facts and circumstances, the appellant Insurance Company is
directed to first pay 75% of the amount under the impugned
awards and recover the same from the owner of the goods
First Appeal No.1/2006
:: 21 ::
carriage. Since the appellant Insurance Company has
deposited the entire amount under the impugned awards,
75% thereof, inclusive of the amount already withdrawn/
permitted to be withdrawn, be paid to the claimants along
with interest accrued thereon. 25% of the amount in deposit
be paid back to it along with interest accrued thereon.
18. The appellant Insurance Company would stand in
the shoes of the claimants to execute the impugned awards
against the owner of the vehicle so as to recover 75% amount
thereunder. The claimants would necessarily be entitled to
put the impugned awards to execution so as to recover unpaid
amount thereunder from the owner of the vehicle.
19. The Appeals stand disposed of in above terms. In
view of disposal of the appeals, Civil Applications are disposed
of.
( R. G. AVACHAT )
JUDGE
fmp/-
