Gujarat High Court
Oriental Insurance Company Ltd vs Maniben Lallubhai Parmar on 13 January, 2025
NEUTRAL CITATION
C/FA/3498/2011 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3498 of 2011
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ORIENTAL INSURANCE COMPANY LTD
Versus
MANIBEN LALLUBHAI PARMAR & ORS.
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Appearance:
MR ANKIT Y BACHANI(5424) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 2,3,4
MR.KARNA H DHOMSE(6684) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/01/2025
ORAL ORDER
Being aggrieved with the judgment and award dated 20.7.2011
passed by the Motor Accident Claims Tribunal (Auxiliary), 8th (Ad-hoc),
Additional District Judge, Vadodara in M.A.C.P. No.143 of 2006, the
appellant has filed this appeal.
2. The short facts of the case are that on 22/12/2005, at about 12.15 at
night, the deceased Jagdishbhai Lallubhai Parmar was coming from
Dabhoi to Vadodara in Three Wheel Tempo bearing No: GJ-01-AT-
6055. The deceased was selling the Super Bakers item at Daboi. The
deceased was seating in the said Three Wheel Tempo. When they were
reached at the patiya of village Ambav, at that time the opponent No.1 i.e.
the driver of the said Three Wheel Tempo lost his control over the
steering and said Three Wheel Tempo turned turtle on the road. As a
result the deceased Jagdishbhai Lallubhai Parmar sustained injuries and
died on the spot. The said accident has been occurred due to rash and
negligent driving of opponent No.1.
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3. The claim petition was filed seeking compensation of Rs.8,00,000/-
and the learned tribunal awarded compensation of Rs.3,26,000/- with
7.5% interest holding opponents no.1 and 2 jointly and severally liable
while directing opponent no.3 - insurance company to pay and thereafter
to recover it from opponent no.1 and 2 which has given rise to this
appeal.
4. Learned advocate for the appellant Mr.Bachani raised solitary
contention challenging the impugned award of pay and recover despite
recording clear exoneration of the insurance company on the ground that
deceased travelling in the three wheeler auto-rickshaw despite there is no
sitting capacity. He would submit that learned tribunal has no
jurisdiction to pass the order of pay and recover and therefore he would
submit to allow this appeal by quashing and setting aside the said finding
of the learned tribunal.
5. On the other hand, learned advocate Mr.Hakim would submit
support the impugned judgment and award and requests to pass
appropriate order.
6. Having heard the learned advocates appearing for the respective
parties and examined R & P, what could be noticed on the factual aspect
that deceased was travelling in the three wheeler tempo and deceased was
selling super backers item at Dabhoi. The deceased lost his life while
sitting in the said tempo on account of the accident occurred. The claim
petition was filed by legal heirs and representative of the deceased and
learned tribunal passed the awarded as recorded in aforementioned
paragraph. The tribunal in paragraph 17 has discussed the issue of
liability and this Court is in complete agreement with the said finding.
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7. Thus, the factual foundation was to the effect that deceased was
coming back to Vadodara in the three wheeler tempo which is used for
transportation of the goods and deceased was sitting as cleaner in the
tempo which is supported from the documentary evidence. The learned
tribunal noticed that aspect and believed that transporting the man instead
of goods in the goods carriage vehicle being third party is fundamental
breach of the terms and conditions. The tribunal after referring to the
decision of Apex Court in case of National Insurance Company
Limitest. V/s Swan Singh and others, reported in 2004 ACJ 1 has held
in paragraph 20 as under:
"20. Thus, considering the material available before me and
discussed here in and above that opponent No.1 and 2 are jointly
and severally liable to pay said compensation amounts. It is noting
able here, the considering the Judement of the Hon'ble Supreme
Court of India in case of National Insurance Company Limited. V/s
Swan Singh and others, reported in 2004 ACJ 1 The Judgment of
the Hon'ble Supreme Court of India in case of Kusum Lata and
Others V/s Sathir and others, reported in 2011, ACJ, 926, that at
the first instance the Insurance Company has to satisfy the award
amount and then to recover the award amount from the owner or
the driver of the vehicle. Therefore considering the Judgment of
Hon'ble Supreme Court of Indus the opponent No.3 Insurance
Company is hereby directed to pay stated. compensation amounts
and thereafter they may recovered the same from the opponent
No.1 and 2."
8. Issuance of policy certificate and covering the date of accident is
no more in dispute. Learned advocate for the appellant referred to the
policy certificate on record which is a packaged policy for goods carrying
commercial vehicle having sitting capacity of six persons. Having
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examined the policy, it would appear that in absence of invalid certificate
the insurance company cannot be absolved from their liability to pay the
compensation.
9. In the fact situation, Co-ordinate Bench of this Court in the case of
United India Insurance Co. Ltd. v/s. Fatmaben Ismailbhai and Ors.
[First Appeal No.1915 of 2006], refereed judgment of Shamanna v.
Oriental Insurance Co. Ltd., (2018) 9 SCC 650, Manuara Khatun v.
Rajesh Kr. Singh, (2017) 4 SCC 796 and Shivaraj V/s Rajendra and
another reported in 2018 ACJ 2755 to pass order of pay and recover.
The issue raised in this appeals are governed by said judgments. Out of
above judgments, let refer judgment in the case of Shamanna v. Oriental
Insurance Co. Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14
as under:
"12. The above reference in Parvathneni case [National Insurance Co.
Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 :
(2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National
Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC 657] by the three-
Judge Bench keeping the questions of law open to be decided in an
appropriate case.
13. Since the reference to the larger Bench in Parvathneni case
[National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009)
3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by
keeping the questions of law open to be decided in an appropriate case,
presently the decision in Swaran Singh case [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733]
followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi
Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other
cases hold the field. The award passed by the Tribunal directing the
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insurance company to pay the compensation amount awarded to the
claimants and thereafter, recover the same from the owner of the
vehicle in question, is in accordance with the judgment passed by this
Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh,
(2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut
[National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 :
(2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court
ought not to have interfered with the award passed by the Tribunal
directing the first respondent to pay and recover from the owner of the
vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC
OnLine Kar 6928] of the High Court exonerating the insurance
company from its liability and directing the claimants to recover the
compensation from the owner of the vehicle is set aside and the award
passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle,
the insurance company shall recover as held in the decision in Oriental
Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v.
Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this
Court held that : (SCC p. 226, para 8)
"8. ... For the purpose of recovering the same from the insured, the
insurer shall not be required to file a suit. It may initiate a proceeding
before the executing court concerned as if the dispute between the
insurer and the owner was the subject-matter of determination before
the Tribunal and the issue is decided against the owner and in favour of
the insurer."
10. Considering the above aspect, this Court finds that tribunal has not
committed any error much less any error of law. The appeal must fail
and is dismissed while confirming the finding arrived at by the tribunal of
passing order of pay and recover. The Tribunal shall disburse the entire
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awarded amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimants, by account payee cheque / NEFT
/ RTGS, after proper verification and after following due procedure in the
apportionment if not done.
Record and proceedings be sent back to the concerned Tribunal,
forthwith.
(J. C. DOSHI,J)
sompura
