[Cites 17, Cited by 0]
Bombay High Court
New India Assurance Co. Ltd, Mumbai vs Namdeo Tukaram Kale And Others on 22 December, 2025
2025:BHC-AUG:36683
FA-1361-2014
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1361 OF 2014
WITH
CIVIL APPLICATION NO.7297 OF 2014
WITH
CIVIL APPLICATION NO.8388 OF 2023
New India Assurance Company Ltd.,
Having its H.O. 87 New India Assurance Bldg.,
Fort, Mumbai - 400 001,
Branch Office at Ozzar Nashik and
Divisional Office at Ajay Engg. Compound,
Adalat Road, Aurangabad 431 005
Through its Senior Divisional Manager (Legal Hubb),
& Constituted Attorney. ... Appellant
Versus
1. Namdeo S/o. Tukaram Kale, } Dismissed as against resp. no.1 as
Age : 79 years, Occu. : Agril., } per Court's order dated 17.03.2023
2. Kesharbai W/o. Namdeo Kale,
Age : 77 years, Occu. : As above,
3. Kalpana W/o. Balu Kale,
Age : 34 years, Occu. : As above,
4. Eknath S/o. Namdeo Kale,
Age : 38 years, Occu. : As above,
5. Raosaheb S/o. Namdeo Kale,
Age : 39 years, Occu. : As above,
All are R/o. Takli Ambad, Tq. Paithan,
Dist. Aurangabad.
6. Sk. Rajjak Ahmed,
Age : Major, Occu. : Business,
R/o. Kasbe Sukene, Tq. Niphad,
Dist. Nashik.
Shantinagar, Bhilai Chatisghad. ... Respondents
FA-1361-2014
-2-
.....
Mr. M. R. Deshmukh, Advocate for Appellant.
Mr. R. G. Hange, Advocate for Respondent Nos.2 to 5.
Mr. A. R. Syed h/f. Mr. Faij J. Khan, Advocate for Respondent No.6.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 18 DECEMBER 2025
PRONOUNCED ON : 22 DECEMBER 2025
JUDGMENT :
1. This appeal, at the instance of original respondent no.2
arises out of judgment and award dated 09.05.2014 passed by
learned M.A.C.T. Beed, in M.A.C.P. No. 147 of 2005 awarding
maintenance to the original claimants/respondent Nos.2 to 5 herein,
on account of accidental death of Balu Namdeo Kale, who died in road
traffic accident dated 03.01.2005.
2. In nutshell, present respondent nos.1 to 5, who are
original claimants, instituted above M.A.C.P., on the premise that,
deceased Balu, who was a labourer engaged in sugarcane cutting, was
traveling in a truck bearing No. MH-15-G-2827, which was meant for
transporting sugarcane labourers on behalf of sugar factory. On the
said day, driver of the vehicle i.e. respondent no.1 was driving the
vehicle in rash and negligent manner, as a result of which, the
vehicle turned turtle causing fatal injuries to the deceased, due to
which, he died. Therefore, invoking section 163-A of the Motor
FA-1361-2014
Vehicles Act, heirs of deceased Balu set up accident claim for
compensation, which was contested by present appellant i.e. original
respondent no.2. Ultimately, learned tribunal allowed the claim
petition directing compensation to the tune of Rs.4,00,000/- to be
paid by original respondent no.1 with interest. However, there were
further directions by order dated 09.05.2014 that, present appellant
(original respondent no.2 insurance company) to satisfy the award
and then recover it from respondent no.1.
Dissatisfied by the above order of 'pay and recover',
insurance company has come up in appeal.
3. Heard. Learned counsel for insurance company Shri
Deshmukh would raise fundamental objection to the grant of
compensation. According to him, the vehicle being goods vehicle,
deceased being gratuitous passenger, he was not entitled to travel
therein and no extra premium being paid, the insurance company
was not liable. It is his submission that, when learned tribunal had
clearly recorded a finding that insurance company succeeded in
proving that there was breach of policy and not liable to pay, learned
tribunal ought not to have even directed insurance company to first
pay and then recover later. It is also his submission that, though
precedents laid down by the Hon'ble Supreme Court are regarding
pay and recover, it is his specific submission that, this has been done
FA-1361-2014
by the Hon'ble Apex court in exercise of Article 142 of the
Constitution of India, and therefore, it is not open for this court to
direct pay and recover.
In support of above contentions, learned counsel seeks
reliance on the judgments of this court in First Appeal No.1502 of
2018, decided on 07.02.2024 in the case of New India Assurance
Company Ltd. v. Manoj Gangaram Narwade and Ors. ; in First Appeal
No. 1401 of 2004 with connected First Appeal Nos. 1403 of 2004 and
1406 of 2004, decided on 21.02.2024 in the case of The New India
Assurance Company Ltd. v. Nagesh s/o. Niloba Deshmukh as well as
in First Appeal No. 1804 of 2018 decided on 22.10.2019 in the case
of Shriram General Insurance Company Ltd. v. Laxman Manik
Jadhav and Ors. and New India Assurance Co. Ltd. v. Asha Rani and
Ors., (2001) 6 SCC 724.
4. In answer to above submission, learned counsel Shri
Hange for respondents/Orig. claimants would point out that, in this
case, though deceased was declared to be a gratuitous passenger, he
justifies order of grant of pay and recover and in support of such
contention, he seeks reliance on the judgments of this court in the
case of Shivaraj v. Rajendra and Anr., (2019) 4 Mh.L.J. 16.;
Manuara Khatun and Ors. v. Rajesh Kumar Singh and Ors. (2017) 4
SCC 796; New India Assurance Co. Ltd. v. Bhagubai w/o. Tukaram
FA-1361-2014
Margal and Ors. in First Appeal No. 479 of 2015; Brij Bihari Gupta v.
Manmet & Ors., in Civil Appeal Nos.6338-6339 of 2024 (Supreme
Court); Sunita and Ors. v. United Insurance Company Ltd. and ors .;
AIR Online 2025 SC 601; and lastly Kurvan Ansari alias Kurvan Ali
and Anr. v. Shyam Kishore Murmu & Anr. in Civil Appeal No.6902 of
2024 (Supreme Court).
5. The only question which this court is called upon to
address is whether, when the insurance company is not liable to
indemnify the claim of a gratuitous passenger for traveling in a goods
vehicle, an order of "Pay and Recover" can at all be passed.
6. Heard. Perused the papers. M.A.C.P. No.147 of 2005 was
instituted by present respondent by invoking section 163-A of M.V.
Act seeking compensation to the tune of Rs.4,00,000/-. Present
appellant, who was original respondent no.2 before the tribunal, vide
written statement at Exh.11 denied rashness or negligence and also
took the plea that driver did not have effective and valid driving
licence. The primary objection raised was that, the vehicle was
driven in breach of the terms and conditions of policy as it was a
goods vehicle, in which the travel or journey by persons was not
permitted and hence, case was set up that liability cannot be
fastened.
FA-1361-2014
7. After appreciating the respective cases of each side,
learned tribunal on the strength of evidence of CW1, documentary
evidence like FIR, accidental death report, spot panchanama and
post mortem report, recorded a finding that, there was ample
evidence to show that accident occurred due to rash and negligent
driving of offending vehicle, and thereby answered issue no.1 in
affirmative.
8. As regards to issue no.2, which was framed on the plea
raised by insurance company, learned tribunal discussed and held in
paragraph no.9 that deceased was traveling in a goods vehicle and
therefore, he was held to be a gratuitous passenger and noting there
to be breach of policy, learned tribunal answered the issue no.2
partly affirmative and partly negative by holding that original
respondent no.2 had succeeded in proving that there was breach of
policy and not liable to pay. Ultimately, while deciding the question as
to who shall pay the compensation, learned tribunal make discussion
in paragraph 11 wherein certain rulings were relied on and it was
clearly observed that, though original respondent no.2 was not liable
to pay compensation, but directions were thought fit to be given to
the insurance company to first satisfy the award and then recover it
from original respondent no.1. Precisely, this is now taken exception
to by insurance company.
FA-1361-2014
9. Indeed, there are judgments on both sides holding that
insurance company should pay first and then recover, and equally
there are also judgments holding that claim of gratuitous passenger,
who meets road traffic accident while traveling in a goods vehicle, is
not entitled to receive compensation, and as such, insurance
company cannot be made to even pay first and then recover later.
10. This court has perused all the rulings and judgments
relied by appellate court. In the rulings relied by learned counsel Shri
Hange for respondents/original claimants, i.e. Sunita and Ors.
(supra) decided recently by the Hon'ble Apex Court, its own previous
judicial pronouncements in the case of Mukund Dewangan v. Oriental
Insurance Company Ltd. & Others, (2017) 14 SCC 663; Bajaj Alliance
General Insurance Co. Ltd. v. Rambha Devi, (2024) 1 SCC 818;
National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1, and Anu
Bhanvara v. IFFCO Tokio General Insurance Co. Ltd., (2020) 20 SCC
632; upheld the High Court's order, holding that although insurer
was technically not liable under the terms of policy, justice and
precedent demanded application for 'pay and recover'. Similar view
is again taken very recently by the Hon'ble Apex Court in the case of
K. Nagendra v. New India Insurance Co. Ltd. And Ors , 2025 SCC
OnLine SC 2297, in paragraph 9 and 10 observed as under :
FA-1361-2014
"9. The purpose of an insurance policy in the present context is to
shield the owner/operator from direct liability when such an
unforeseen/unfortunate incident takes place. To deny the
victim/dependents of the victim compensation simply because the
accident took place outside the bounds of the permit and, therefore,
is outside the purview of the insurance policy, would be offensive
to the sense of justice, for the accident itself is for no fault of his.
Then, the Insurance Company most certainly ought to pay.
10. At the same time though, when an Insurance Company takes
on a policy and accepts payments of premium in pursuance thereto,
it agrees to do so within certain bounds. The contract lays down the
four corners within which such an insurance policy would operate.
If that is the case, to expect the insurer to pay compensation to a
third party, which is clearly outside the bounds of the said
agreement would be unfair. Balancing the need for payment of
compensation to the victim vis-à-vis the interests of the insurer, the
order of the High Court applying the pay and recover principle, in
our considered view, is entirely justified and requires no
interference." (emphasis laid)
11. The above observations answer's also the submission
raised by the learned counsel for insurance company that the orders
of Hon'ble Apex court were in exercise under Article 142 and the
same is not permissible for this court. In order to render justice and
to meet the objectives of 'benevolent legislation' and also to further
'grant immediate reprieve' to the victims, order of "Pay and Recover''
passed by learned tribunal, is justified and is consequently required
FA-1361-2014
to be upheld. Hence, the following order is passed :
ORDER
(i) First Appeal is dismissed.
(ii) Pending Civil Application No.7297 of 2014 is disposed off.
(iii) Civil Application No.8388 of 2023 filed by the original
claimants for withdrawal of amount is allowed and disposed off.
Respondents/original claimants are permitted to withdraw
amount lying in the tribunal/this court subject to furnishing
usual undertaking, if any.
(ABHAY S. WAGHWASE, J.)
Tandale
