Jammu & Kashmir High Court
6 Ma No. 42/2015 A/W vs For Appellant(S): Mr. Amrit Sarin on 24 October, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 42/2015
The Oriental Insurance Co. Ltd. v. Badar Hussain and anr.
MA No. 41/2015
The Oriental Insurance Co. Ltd. v. Salam Din and ors.
MA No. 43/2015
The Oriental Insurance Co. Ltd. v. Altaf Hussain and anr.
MA No. 44/2015
The Oriental Insurance Co. Ltd. v. Bagh Hussain and anr.
MA No. 45/2015
The Oriental Insurance Co. Ltd. v. Roshan Din and anr.
MA No. 46/2015
The Oriental Insurance Co. Ltd. v. Alaf Din and anr.
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Appearing counsels:
For appellant(s): Mr. Amrit Sarin, Advocate.
For respondent(s): Ms. Himani Uppal, Advocate.
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT (Oral)
24.10.2024
1. Impugned in all the six appeals filed by Oriental Insurance
Company Ltd. (hereinafter referred to as the Appellant) in terms of
provisions of Section 173 of Motor Vehicles Act, 1986 (hereinafter
referred to as "the Act") is the common award dated 31.10.2014 passed by
learned Motor Accident Claims Tribunal, Rajouri (hereinafter referred to
as MACT), while disposing of six claim petitions bearing File Nos. 269
dated 14.03.2009, 253 dated 13.02.2009, 54 dated 13.02.2009, 252 dated
13.02.2009, 114 dated 16.12.2008 and 115 dated 16.12.2008.
2. All the claim petitions giving rise to the impugned common award
dated 31.10.2014, came to be filed by the legal heirs of the deceased
connected matters.
persons as well as by the injured, on account of an unfortunate road traffic
accident, that is reported to have taken place on 25.06.2008, when a Tata
Truck bearing Registration No. JK02V-1285 (hereinafter referred to as
„offending vehicle‟) being driven by its driver, Rattan Singh, carelessly
and negligently and at a high speed, while going from Gadyog towards
Kotranka and upon reaching Budhal at about 17.45 hours, rolled down in
a deep gorge, upon the said driver losing control over his stearing. The
said driver of the offending vehicle, Rattan Singh, is also reported to have
died in the unfortunate accident. Three other persons are reported to have
died in the accident when three more reported to have suffered
disablement on account of injuries received by them in the accident. Out
of the aforementioned deceased/disabled (injured) persons, some are
reported to had boarded the offending vehicle as owners of the goods,
while some are reported to had boarded in the same as laborers.
3. Respondent/owner of the offending vehicle, did not opt to contest
the proceedings, pursuant to which, he was proceeded ex parte by the
learned, MACT. However, Respondent/insurer in all the claim petitions
i.e. The Oriental Insurance Company Ltd. contested the claim petitions
and resisted the claim of the petitioners therein (respondent before this
court) on various grounds, especially on the ground that although
offending vehicle was insured with it on the fateful day of accident, but it
is not liable to indemnify the owner of the same because all the
deceased/injured persons were boarded in the goods vehicle as gratuitous
passengers.
connected matters.
4. The claim petition bearing File No. 269/claim to the extent of
which the impugned common award stands assailed in MA No. 41/2015,
relates to the death of one Mohammad Iqbal, who as reported was serving
in Belt Force under No. 12914559H of Unit No. 156 Inf. Bn. TA (H&H)
Punjab Station C/o 156 APO. His legal heirs including his parents, wife,
daughters and sisters are reported to have preferred the claim petition
before the learned MACT. A total compensation amount of Rs.
20,19,000/- along with interest @ 7.5% per annum stands awarded by the
learned MACT in favour of the legal heirs of the deceased.
5. Claim petition No. 02 bearing File No. 253/Claim to the extent of
which, the common impugned award stands assailed in MA No. 43/2015
relates to the injuries/disablement suffered by one Altaf Hussain. A total
compensation amount of Rs. 1,27,500/- along with interest @ 7.5% per
annum was awarded by the learned MACT in his favour.
6. Claim petition No. 03 bearing FIR No. 54/Claim to the extent of
which the common impugned award dated 31.10.2014 came to be assailed
in MA No. 46 of 2015 relates to injuries/disablement suffered by Alaf
Din. A total compensation amount of Rs. 1,00,500/- along with interest @
7.5% per annum came to be awarded by the Learned MACT.
7. Claim petition No. 04 bearing File No. 252/C to the extent of
which common impugned award dated 31.10.2014 came to be assailed in
MA No. 42 of 2015 relates to the injuries/disablement suffered by one
Badder Hussain. A total compensation amount of Rs. 2,32,800/- along
with interest @ 7.5% per annum came to be awarded by the learned
MACT.
connected matters.
8. Claim petition No. 5 bearing File No. 114/C to the extent of which
common impugned award dated 31.10.2014 came to be assailed in MA
No. 44 of 2015 relates to the death of one Mushtaq Hussain who was 15
years of age at the time of accident. The said claim petition came to be
filed by the father of the minor deceased. A total compensation amount of
Rs. 2,00,000/- along with interest @ 7.5% came to be awarded by the
learned MACT.
9. Claim petition No. 6 bearing file No. 115-A/C to the extent of
which common impugned award stands assailed in MA No. 45/2015
relates to the death of one Sh. Mohd. Shabir, who was 16 years of age at
the time of accident. His father, namely, Roshan Din filed the aforesaid
claim petition before the learned MACT and a total compensation amount
of Rs.2,00,000/- along with interest @ 7.5% per annum was awarded by
the learned MACT in favour of the legal heir of the deceased.
10. Learned MACT upon adjudication of the issues that had already
been framed during the enquiry proceedings held in common regarding all
the claim petitions passed the impugned award holding respondent No.1,
owner of the offending vehicle, liable to pay the compensation awarded in
all the matters. However, learned MACT, in view of the provisions of
Section 147(vi) of the Act directed respondent No. 2 in all the claim
petitions (Appellant in the present appeals) to indemnify the said owner in
the first instance by satisfying the Award with liberty to recover the total
amounts under the same from respondent No.1, owner of the offending
vehicle.
connected matters.
11. Appellant/insurer in the present appeals has assailed the common
impugned award in relation to all the claim petitions, mainly, on the
ground that since the deceased and the injured boarded in the offending
vehicle as on the date of incident, were gratuitous passengers, as such, it
i.e. appellant company is not liable under law to indemnify the owner of
the offending vehicle.
12. I have heard the learned counsels for the contesting parties.
13. Learned counsel for the Appellant, Mr. Amrit Sareen, very
vehemently contended that since offending vehicle was a Tata Truck,
thus, being a goods vehicle, the deceased and insured were not to be
allowed to board in the same as gratuitous passengers and in doing so,
owner of the offending vehicle has observed the terms and conditions of
the policy of insurance in utter breach. Learned counsel submitted that it
is a settled legal position that an insurer is not liable to indemnify the
insured in respect of the liability arising out of the death or bodily injury
of a gratuitous passenger. Learned counsel, in support of his contentions
placed reliance upon the authoritative judgments cited as New India
Assurance Co. Ltd., Appellants v. Asha Rani and others, Respondents;
AIR (2003) SC 607(1), National Insurance Co. Ltd. v. Ajit Kumar and
others; [Appeal (Civil) No. 6915-6916 of 2003 dated 02.10.2003], M/s.
National Insurance Co. Ltd., Appellant v. Baljit Kour and others,
Respondents; AIR 2004 SC 1340(1), Sanjeev Kumar Samrat v. National
Insurance Co Ltd. & Ors.; AIR 2013 SC 1125, National Insurance Co.
Ltd. v. Cholleti Bharatamma and ors.; AIR 2008 SC 484(1), United India
Insurance Company Ltd. v. Amina Begum & ors. [CIMA No. 217 of 2008
connected matters.
dated 15.12.2011], National Insurance Co. Ltd. v. Prema Devi and others;
AIR 2008 SC (Supp) 1631, United India Insurance Co. Ltd. V. Sheela
[C.M.A. (MD) No. 216 of 2011 a/w connected matters dated 22.03.2017]
and IFFCO TOKIO General Insurance Company Ltd. v. Muthumani and
ors. decided by Madrass High Court [C.M.A. No. 3706 to 3708 of 2013
dated 11.07.2014].
14. A perusal of the authoritative judgments referred to by the learned
counsel for the appellant reveals that it has been held in all the said
decisions that an insurer is not liable to pay compensation by way of
indemnification in respect of the liability that arises as against the
owner/insured in respect of the death of the owner of the goods or his
authorized representative being carried in goods vehicle in violation of the
terms and conditions of the policy of insurance because law does not
permit to be boarded in a goods vehicle.
15. Per contra, learned counsel for the contesting respondents/claim
petitioners, Ms. Himani Uppal, Advocate submitted that as per the latest
law on the subject, an insurer is liable to indemnify the insured in the first
instance, in respect of his liability to pay compensation to the legal
representatives of the deceased passengers or to the injured being carried
in the goods vehicles as gratuitous passengers and then to recover the
same from the owner/insured.
16. Learned counsel in support of her argument placed reliance upon
authoritative judgments of the Hon‟ble Apex Court cited as Manuara
Khatun and ors. v. Rajesh Kr. Singh and Ors.; 2017 Legal Eagle (SC) 123,
Manager, National Insurance Company Limited v. Saju P.Paul & Anr.;
connected matters.
(2013) 2 SCC 41, Shivaraj v. Rajendra [Civil Appeal Nos. 8278-8279 of
2018 dated 05.09.2018]. It has been submitted by the learned counsel for
the contesting respondents that Hon‟ble Apex Court in Manager, National
Insurance Company Limited v. Saju P.Paul & Anr., (supra) took note of
entire previous case law on the subject and examined the question in the
context of Section 147 of the Act. That Hon‟ble Apex Court in the said
case, keeping in view the benevolent object of the Act and other relevant
factors arising in the case, issued direction against the insurance company
to pay the awarded sum to the claimants and then to recover the said sum
from the insured in the same proceedings by applying principle of pay and
recover. Learned counsel also submitted that in Manuara Khatun and ors.
v. Rajesh Kr. Singh and Ors. (supra), Hon‟ble Apex Court held that by
applying the consistently propounded principle, "Pay and Recover"
insurer is liable, in the first instance, to pay the awarded sum to the
claimants and then to recover the same from the insured.
17. In the aforesaid backdrop, this Court is of the opinion that
having regard to the fact that Motor Vehicles Act, 1988, being a social
legislation, provisions of Section 147(vi) of the Act need to be given a
justice oriented interpretation and meaning so as to fulfill the purpose
of the legislation. It is being generally observed that the insured often
opt to stay away from the proceedings being initiated by the legal
representatives of the deceased, victims of the road traffic accidents
or by the injured, thereby running a serious risk. Award holders, who
often happen to be the legal representatives of the deceased, victims of
a road traffic accident, cannot be allowed to run from pillar to post
connected matters.
for satisfaction of the Award. The, "Balance of convenience" which
should be the guiding factor while determining the respective rights
and liabilities arising out of a contractual obligation mandated &
regulated by a benevolent provisions of a legislation, lies in favour of
doctrine of, "pay and recover". Highest thing that can happen by
directing the insurer to pay and recover is that a financially much
strong legal entity will get the amount back a little later.
18. Learned MACT has rightly observed that insurance company-
Appellant herein (respondent No.1 in the claim petitions) is liable to pay
in the first instance with liberty to recover the award amounts from the
insured.
19. For the foregoing discussions, all the appeals filed by the
appellant-insurance Company are dismissed as meritless. The Award
amounts in all the cases if still deposited whether in the Registry of this
Court or in the learned MACT concerned, shall stand immediately
released in favour of the claim petitioners (contesting respondents herein)
strictly as per the common award. In case any of the claim petitioners has
died during the pendency of these appeals ,the compensation amount to
the extent of such persons is ordered to be released in favour of his/her
legal heirs upon proof of the same.
20. Disposed of.
(MOHD. YOUSUF WANI)
JUDGE
Jammu
24.10.2024
(Paramjeet)
Whether the order is speaking? Yes
Whether the order is reportable? Yes
