Madhya Pradesh High Court
The New India Assurance Co. Ltd ... vs Smt. Basanti Bai on 29 November, 2022
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 29th OF NOVEMBER, 2022
MISC. APPEAL No. 1005 of 2017
BETWEEN:-
THE NEW INDIA ASSURANCE CO. LTD
THR. DIVISIONAL MANAGER F-4 CITY
SQUARE NEAR OF GDA OFFICE RAVI
NAGAR GWALIOR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI B.K.AGRAWAL - ADVOCATE)
AND
SMT. BASANTI BAI W/O LATE SHRI
RAMBABU MISHRA, AGED ABOUT 49
1.
YEARS, VILL. THARA PARGANA
AMBAH (MADHYA PRADESH)
MOHAN PRAKASH UPADHYAY S/O
SHRI RAJARAM UKPADHYAY JANVED
ASHRAM SIKRODA A.B.ROAD
2.
MORENA POLICE STATION CIVIL LINE
TEHSIL AND MORENA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI R.P.GUPTA - ADVOCATE)
This appeal coming on for hearing this day, the court passed the
following:
2
ORDER
Heard finally with consent of the parties.
This Misc. Appeal under Section 173 of Motor Vehicles
Act, 1988 has been filed against the award dated 19-6-2017
passed by 1st Add. Motor Accident Claims Tribunal, Morena in
Claim Case No.34/2015.
The necessary facts for disposal of the present appeal in
short are that on 1-6-2009 at about 3:45 P.M., the offending bus
(Mini Bus) bearing registration No. MP 06 P 0114 met with an
accident causing death of various passengers, including Brajesh
Mishra aged about 28 years. The respondent no.1/claimant is the
mother of the deceased.
The Claims Tribunal after recording evidence and hearing
all the parties, allowed the claim petition filed by the claimants
therein and awarded Rs.3,74,000/- with interest @ 9% p.a.
Challenging the impugned award, it is submitted by the
Counsel for the Insurance Company that the Claims Tribunal has
come to a conclusion that the bus was being driven without valid
permit and the driver of the bus was not having valid driving
licence, and the conditions of Insurance Policy were breached,
however, applied the principle of "Pay and Recover". It is
submitted that the bus was overloaded and fell in the Chambal
River, therefore, the bus was being driven in breach of the
Insurance Policy. Further, the Claims Tribunal has awarded an
exorbitant rate of interest and since, the Insurance Company is
not responsible for the delay in trial, therefore, the interest
should not have been awarded from the date of application.
Per contra, the Counsel for the claimant has supported the
impugned award.
Considered the submissions made by the Counsel for the
parties.
The Claims Tribunal, has come to a conclusion, that the
driver of the offending vehicle was not having valid driving
licence and it was being plied without valid permit, however, has
applied the principle of "Pay and Recover".
The Supreme Court in the case of Shamanna v. Oriental
Insurance Co. Ltd., reported in (2018) 9 SCC 650 has held as
under:
11. In the present case, to deny the benefit of "pay
and recover", what seems to have substantially
weighed with the High Court is the reference to
larger Bench made by the two-Judge Bench in
National Insurance Co. Ltd. v. Parvathneni which
doubted the correctness of the decisions which in
exercise of jurisdiction under Article 142 of the
Constitution of India directing insurance company
to pay the compensation amount even though
insurance company has no liability to pay. In
Parvathneni case, the Supreme Court pointed out
that Article 142 of the Constitution of India does
not cover such type of cases and that: (SCC p.
786, para 5)
"5. If the insurance company has no liability
to pay at all, then, it cannot be compelled by
order of the court in exercise of its
jurisdiction under Article 142 of the
Constitution of India to pay the
compensation amount and later on recover it
from the owner of the vehicle."
12. The above reference in Parvathneni case has
been disposed of on 17-9-2013 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 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 followed in Laxmi Narain Dhut and
other cases hold the field. The award passed by
the Tribunal directing the 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 and Laxmi Narain Dhut
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 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 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."
Thus, in the light of the judgment passed by the Supreme
Court in the case of Shamanna (Supra), it is held that the
Claims Tribunal did not commit any mistake in applying the
principle of "Pay and Recover".
So far as the question of interest @ 9% p.a. is concerned,
the same appears to be on higher side. Therefore, it is directed
that the claimant shall be entitled for interest @ 6% p.a. from the
date of filing of claims petition.
So far as the delay in disposal of claim petition is
concerned, it is suffice to mention here that the Counsel for the
insurance company could not satisfy this Court as to how the
claimant is solely responsible for the delay. Further, if there was
a delay in final disposal of claim petition, then the claimant was
also deprived of compensation. Accordingly, the submission is
rejected.
It is submitted by the Counsel for the insurance company
that the Claims Tribunal has awarded Rs.3,74,000/- by way of
compensation for the death of Brajesh Mishra, aged around 28
years, but could not satisfy this Court as to how the said
compensation amount is on the higher side. Accordingly, the
compensation of Rs.3,74,000/- for the death of Brajesh Mishra,
is hereby affirmed.
At this stage, it is submitted by the Counsel for the
appellant, that the Claims Tribunal, may be directed to complete
the execution proceedings against the owner of the offending
vehicle without any further delay.
Whenever the principle of "pay and recover" is made
applicable, then the Insurance Company is entitled to recover the
same from the owner/insured by executing the award itself. Thus,
it is directed that if the execution proceedings against the
owner/insured are pending at the behest of the insurance
company, then the same shall be completed within a period of 8
months from the filing of certified copy of this order.
With aforesaid observations, the award dated 19-6-2017
passed by 1st Add. Motor Accident Claims Tribunal, Morena in
Claim Case No.34/2015 is hereby affirmed.
The appeal filed by the insurance company is dismissed.
(DEEPAK KUMAR AGARWAL)
Judge
Ashish*
ASHISH
CHAURASIA
Digitally signed by ASHISH CHAURASIA
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Date: 2022.12.01 13:37:05 -08'00'
