The Branch Manager, The Oriental ... vs Kathibai Pratapsingh Pawar And ...
2022 Latest Caselaw 1068 Bom

                                                 First Appeal No.736/2009
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                        FIRST APPEAL NO.736 OF 2009


 The Branch Manager,
 The Oriental Assurance Company
 Ltd., Dhule, Now represented
 through the Sr. Divisional Manager,
 Oriental Insurance Company Ltd.,
 "Inderprakash", Adalat Road,
 Aurangabad                                     ... APPELLANT

          VERSUS

 1.       Smt. Kathibai Pratapsingh Pawara,
          Since deceased, through L.Rs.
          (Respondents No.2 to 4)

 2.       Master Subhash Pratapsingh Pawara,
          Age 24 years, Occ. Education

 3.       Master Vishwanath Pratapsingh Pawara,
          Age 13 years, Occ. Education

 4.       Master Anil Pratapsingh Pawara,
          Age 12 years, Occu. Education

          All 1 to 4 above are
          R/o Roshmel, Tq. Dhadgaon,
          Dist. Nandurbar

          (Respondents 3 & 4 being minors,
          under the guardianship of their
          natural mother i.e. respondent No.1)

 5.       Ravindra Govind Pawar,
          Age 27 years, Occ. Driver,
          R/o Kandawali, Tq. Dapoli,
          District Ratnagiri

 6.       Vinayak S. Mahajans
          Age adult, Occ. Matador Owner,




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                                                     First Appeal No.736/2009
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          R/o Kandawale, Tq. Dapoli,
          Dist. Ratnagiri.                         ... RESPONDENTS

                              .......
 Shri M.K. Goyanka, Advocate for appellants
 Shri C.R. Deshpande, Advocate for respondents No.1 to 4
 Shri D.S. Kulkarni, Advocate for respondent No.6
                              .......

                               CORAM :        R. G. AVACHAT, J.
                  Date of reserving judgment : 3rd December, 2021
                  Date of pronouncing judgment : 31st January, 2022.


 JUDGMENT:

This is an Insurance Company's appeal, taking

exception to the judgment and award, directing it to pay the

amount of compensation first and then recover the same from

the owner of the offending vehicle. It was a death claim

preferred by widow and three minor children of the deceased

Pratapsing, who died in vehicular accident. The Tribunal

granted compensation of Rs.13,24,000/- with interest @ 9%

p.a.

2. The facts giving rise to the present appeal are as

follows :

The deceased Pratapsing was 30 years of age. He

was serving as a Primary teacher. On 5/9/2000, he was

travelling in a Matador bearing No.MH-08/6545 (goods

First Appeal No.736/2009 :: 3 ::

vehicle). The Matador met with the accident. As a result of

the injuries suffered therein, Pratapsing breathed his last.

Considering the monthly salary of the deceased at Rs.6000/-

and making addition of 50% towards future prospects, the

Tribunal granted the compensation of Rs.13,24,000/-

inclusive of compensation on account of conventional heads.

The Tribunal held the deceased to have been travelling as a

gratuitous passenger in a goods vehicle and, therefore, held

the owner of the Matador to be liable to pay the amount of

compensation. Since the Matador had an insurance cover

granted by the appellant Insurance Company, the Tribunal

directed it to first pay the amount of compensation and then

recover the same from the owner.

3. The learned counsel for the Insurance Company

would submit that, there is no appeal or cross-objection

preferred by either the owner of the offending vehicle or the

legal representatives of the deceased (claimants).

Admittedly, the deceased was travelling in a goods vehicle as

an unauthorized passenger. The same constitutes breach of

terms of conditions of the insurance policy. The risk of such

passenger was not covered under the policy of insurance.

The Tribunal, therefore, ought not to have been saddled with

First Appeal No.736/2009 :: 4 ::

the liability to first pay the amount of compensation and then

recover the same. According to the learned counsel, such

direction could only be passed by the Apex Court in exercise

of its powers under Article 142 of the Constitution of India.

According to the learned counsel, the quantum of

compensation awarded is also on higher side. Learned

counsel relied on the following judgments :

(1) United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare & ors. [ 2008(1) Mh.L.J. 73 ]

(2) National Insurance Company Ltd. Vs. Anand Sawant & ors. [ 2009(4) Mh.L.J. 280 ]

(3) Shamanna & anr. Vs. Divisional Manager, Oriental Insurance Company Ltd. & ors. (2018) 9 SCC 650

(4) United India Insurance Company Ltd. Vs. Sukumarbai w/o Suryakant Nikam & ors.

(First Appeal No.2021 of 2018)

Learned counsel, therefore, urged for allowing the

appeal.

4. The deceased was traveling in a goods vehicle. He

was not traveling in the capacity as owner or representative of

owner of the goods carried in the vehicle that met with the

accident. As such, the deceased was the gratuitous/

unauthorized passenger in the goods vehicle (Matador). The

Matador met with the accident. As a result of the injury

First Appeal No.736/2009 :: 5 ::

suffered therein, Pratapsing breathed his last. Admittedly, the

policy of insurance did not cover the risk of gratuitous

passenger carried in the goods vehicle. The appellant

Insurance Company has, therefore, no liability, either

contractual or statutory to pay amount of compensation

granted under the impugned award. The learned counsel for

the appellant was, therefore, justified in submitting that the

Tribunal ought not to have directed the appellant Insurance

Company to pay the amount under the impugned award and

then recover the same. The learned counsel has, therefore,

rightly relied on the Apex Court judgment in case of National

Insurance Co. Ltd. Vs. Baljit Kaur & ors. [ (2004) 2 SCC 1 ].

In the very judgment, however, the insurer was directed to

satisfy the award and then recover the same from the owner

of the vehicle by simply initiating the proceedings before the

Executing Court without filing a separate suit.

5. Learned counsel for the appellant Insurance

Company has also relied on the judgment of this Court in case

of United India Insurance Co. Ltd. Vs. Anubai Gopichand

Thakare & ors. [ 2008(1) Mh.L.J. 73 ], wherein it has been

observed that, directions which are given by the Apex Court

to pay the amount/ satisfy the award and then recover the

First Appeal No.736/2009 :: 6 ::

amount from the owner of the vehicle are given in exercise of

extraordinary jurisdiction under Article 142 of the Constitution

of India and cannot be treated as a binding precedent. This

Court cannot dispute the said proposition.

6. This Court has, however, time and again come

across judgments of the Apex Court, of this Court and various

High Courts as well, wherein, even in case the insurer is found

to have no liability to pay compensation in the circumstances,

similar to one in the case in hand, still the orders to satisfy

the award and recover the amount have been passed. This

Court, accepting the submissions of the learned counsel for

the appellant Insurance Company is, however, not inclined to

upset the impugned award in toto.

7. I have perused the following citations relied on by

the learned counsel for the respondents - claimants :-

(1) National Insurance Company Ltd. Vs. Parvathneni & anr.

(2018) 9 SCC 657

(2) National Insurance Company Ltd. Vs. Parvathneni & anr.

[(2009) 8 SCC 785 ]

(3) National Insurance Company Ltd. Vs. Swaran Singh & ors. [ (2004) 3 SCC 297 ]

(4) National Insurance Company Ltd. Vs. Laxmi Dhut (2007) 3 SCC 700

First Appeal No.736/2009 :: 7 ::

(5) Shamanna & anr. Vs. The Divisional Manager, the Oriental Insurance Co. Ltd. & ors.

(Civil Appeal No.8144/2018)

8. In case of National Insurance Company Ltd. Vs.

Parvathneni (2009) 8 SCC 785 (supra), the validity of the

directions to the Insurance Company was doubted. The

matter was referred to the Hon'ble the Chief Justice of India

for constituting a larger Bench for decision on the issue. The

larger Bench did not entertain the petition under Article 136 of

the Constitution of India in view of smallness of the amount

involved. The question of law raised in the petition was kept

open to be decided in an appropriate case.

9. The judgment in Swaran Singh's case (supra)

pertained to non-holding of valid and effective driving licence

by the driver because of whose rashness and negligence the

accident took place.

10. When the claimants are not entitled to receive

compensation from the insurer as of right, then it would be

within the discretion of the Court to pass appropriate orders in

the facts and circumstances of the case. The deceased herein

was a primary teacher. Meaning thereby, he had a permanent

job. On his demise, the claimants must have received service

First Appeal No.736/2009 :: 8 ::

benefits. Even one of them might have secured a job on

compassionate ground. True, this has no bearing on the

question of quantum of compensation. These facts, however,

indicate that the claimants have somewhat financial security

since the deceased was in Government service.

11. This Court has conceded to the submissions made

by the learned counsel for the appellant Insurance Company.

However, in the facts and circumstances of the case, this

Court has proposed to direct the appellant insurer to satisfy

70% of the amount under the impugned award and then

recover the same from the owner of the vehicle. This Court

is, therefore, inclined to direct the appellant Insurance

Company to pay 70% of the amount under the impugned

award and then recover the same from the owner of the

vehicle simply by initiating proceedings before the Executing

Court without filing a separate suit.

12. With this, the appeal is allowed in terms of the

following order :

ORDER

(i) The direction in the impugned award to the appellant

Insurance Company to pay the entire amount under the

First Appeal No.736/2009 :: 9 ::

impugned award and then recover the same from the owner

of the vehicle is modified as under :

(ii) The appellant Insurance Company is directed to pay

70% of the amount under the impugned award and then

recover the same from the owner of the vehicle simply by

initiating proceedings before the Executing Court without filing

a separate suit. 70% of the amount in deposit be paid to the

respondents/claimants with interest accrued thereon.

(iii) The balance amount be paid back to the appellant

Insurance Company with interest accrued thereon.

( R. G. AVACHAT ) JUDGE

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