Bajaj Allianz Insurance Company ... vs Joginder Pal And Others
2021 Latest Caselaw 76 j&K

               HIGH COURT OF JAMMU AND KASHMIR
                             ATJAMMU
                                  (Through Video Conference)

                                                            Reserved on :      01.02.2021
                                                            Pronounced on: 05.02.2021

                                                     MA No. 51/2019
                                                     [Mac App No. 30/2019]
                                                     CM No. 2670/2019[1/2019]


Bajaj Allianz Insurance Company Ltd.                                    .....Appellant(s)

                    Through :- Mr. Baldev Singh, Advocate

              v/s

Joginder Pal and others                                               .....Respondent(s)

Through :- Mr. Mohd. Shaquir Hussain, Advocate for

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE (through Video Conference from High Court, Jammu)

Judgment

1. The present appeal has been filed by the appellant against the award

dated 30.11.2018 passed by the Motor Accidents Claim Tribunal, Kathua (for

short the Tribunal) in a claim petition No. 10/2016, titled, Joginder Pal and

another vs Sukhbir Singh and others, by virtue of which the appellant has been

directed to pay Rs. 7,78,000/- along with interest at the rate of 7.5% per annum

till its realization.

2. The present appeal has been filed solely on the ground that the

deceased was travelling on the alleged offending vehicle, i.e. Tractor bearing

registration No. JK08C 5607 as a gratuitous passenger and the appellant could

not have been saddled with the responsibility of satisfying the award passed by

the learned Tribunal. It is further stated that the liability of the insurance

company-appellant is only to indemnify the insured and once the learned

Tribunal has recorded its finding that the insurance company is not liable to

indemnify the insured, the appellant could not have been directed to satisfy the

award vis a vis a gratuitous passenger.

3. Mr. Baldev Singh, learned counsel for the appellant has reiterated

the grounds those have been taken in the memo of appeal. A perusal of the award

reveals that while deciding issue No. 3, the learned Tribunal has held that the

deceased was travelling on a tractor as a gratuitous passenger so the respondent

No. 3, appellant herein is not liable to pay any compensation to the claimants,

respondent Nos. 1 and 2 herein. However, the learned Tribunal while relying

upon the judgments of the Apex Court in National Insurance Company

Limited v Swaran Singh and others, AIR 2004 SC 1531 and Kusum Lata v

Satbir, AIR 2011 SC 1234, has directed the appellant to satisfy the award

amount with a liberty to recover the said amount from the insured, respondent

No. 3 i.e. owner of the offending Tractor.

4. The principle of pay and recover in case of offending Tractor has

been reiterated by the Apex Court in Shivraj vs. Rajindra and another, 2018

(10) SCC 432.The relevant paragraph No. 10 is reproduced as under:

" .....in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co. Ltd.2, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors.3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others.4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting

relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1)"

5. In view of observations made by the Apex Court in Shivraj's case

(supra), no fault can be found with the award passed by the learned Tribunal in

view thereof, the appellant was directed to satisfy the award amount with

liberty to the appellant to recover the same from the owner of the vehicle i.e.

respondent No. 3.

6. In view of what has been discussed above, this appeal has not merit

and the same is ,as such, dismissed.

7. Award amount be released in favour of the respondents/claimants in

terms of conditions imposed by the learned Tribunal in the award after due

verification.

(RAJNESH OSWAL) JUDGE

Jammu:

05.02.2021
Rakesh
                                    Whether the order is speaking:     Yes/No
                                    Whether the order is reportable:   Yes/No