United India Insurance Co.Ltd. vs Pinky
2024 Latest Caselaw 3759 MP

Madhya Pradesh High Court

United India Insurance Co.Ltd. vs Pinky on 8 February, 2024

Author: Roopesh Chandra Varshney

Bench: Roopesh Chandra Varshney

                                                               1

   IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                         BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
          ON THE 08th DAY OF FEBRUARY, 2024

              MISC. APPEAL No. 1236 OF 2022

BETWEEN:-
UNITED INDIA INSURANCE COMPANY
LIMITED    THROUGH     ASSISTANT
MANAGER, LEGAL HUB INCHARGE
OFFICE, PHALKA BAZAR, LASHKAR,
GWALIOR (MADHYA PRADESH)
                                              .....APPELLANT
(BY SHRI RAJESH GUPTA - ADVOCATE )

AND

1 PINKY W/O RINKU AGED 25 YEARS
2. SMT. SUSHILA W/O JAGDISH, AGED 44
YEARS,
3. JAGDISH S/O JANVED, AGED 44
YEARS, R/O BEHIND NAGAR PALIKA
JORA, DISTRICT MORENA (M.P.).
4. SMT. BADAMI BAI W/O POORAN
SINGH
5. SOORAJ KUSHWAH S/O POORAN
SINGH, R/O JIGANI TEHSIL, DISTRICT
MORENA (M.P.).
                                         .....RESPONDENTS
(RESPONDENTS NO. 1 TO 3 BY SHRI B.D.JAIN- ADVOCATE)
                                 AND
                  MISC. APPEAL No. 1237 OF 2022

  BETWEEN:-
   UNITED INDIA INSURANCE COMPANY
                                                                           2

      LIMITED    THROUGH    ASSISTANT
      MANAGER, LEGAL HUB INCHARGE
      OFFICE, PHALKA BAZAR, LASHKAR,
      GWALIOR (MADHYA PRADESH)
                                                      .....APPELLANT
     (BY SHRI RAJESH GUPTA- ADVOCATE )

     AND

      1 JANVED PRAJAPATI S/O BUDDIRAM
      PRAJAPATI, AGED 57 YEARS, R/O
      BEHIND NAGAR PALIKA JORA,
      DISTRICT MORENA (M.P.).
      2.SMT. BADAMI BAI W/O POORAN
      SINGH
      3. SOORAJ KUSHWAH S/O POORAN
      SINGH, R/O JIGANI TEHSIL, DISTRICT
      MORENA (M.P.).
                                                   .....RESPONDENTS
     (RESPONDENT NO. 1 BY SHRI B.D.JAIN- ADVOCATE)
      These appeals coming on for orders this day, the court passed the
following:
                                 ORDER

Heard on I.A.No. 1213/2022 and 1219/2022, which are the applications for condonation of delay in filing the appeal Nos. 1236/2022 and 1237/2022 respectively.

2. The appeals are stated to be barred by above 1000 days.

3. It is the submission of learned counsel for the appellants that after passing of impugned award, the Insurance Company preferred review petition however, same got rejected on 19/3/2021 and thereafter due to COVID-19 complications, the appeals could not be filed in time and thereafter could be filed only on 21/3/2022.

4. For the reasons mentioned the applications, same are allowed and delay in filing the appeals are hereby condoned.

5. This order shall govern disposal of M.A.No. 1236/2022 and 1237/2022 as both these appeals are filed by Insurance Company against the common award dated 20/12/2018 passed by Second Additional Motor Accident claims Tribunal, Jaura, District Morena in Claims Case Nos. 9/2015 and 164/2015; whereby, the claimants/respondents No. 1 to 3 of M.A.No. 1236/2022 have been awarded a compensation of Rs. 11,59,318/- for the death of one Rinku, husband of claimant/respondent No. 1 and son of respondents No.2 and 3/claimants; whereas, claimant/injured of M.A.No. 1237/2022 has been awarded compensation of Rs. 80,883/- for the injuries sustained by him.

6. Since, the facts of the both case as regards fastening liability over the Insurance Company are same, for the sake of arguments, facts of M.A.No. 1236/2022 are taken into consideration.

7. Insurance Company has filed both these appeals on the ground that while passing the impugned award, the Claims Tribunal has fastened the liability of payment of compensation amount over the Insurance Company, whereas, on the date of incident, the driver of offending vehicle was not having valid driving licence and the offending vehicle having registration No. MP06R0566 was being plied against the permit and fitness and even after raising this point in written statement filed by Insurance Company, the Claims Tribunal has fastened the liability over the Insurance Company and therefore, committed grave error of law. Even after receiving the report from Investigation Officer dated 24/12/2018, the review petition was filed before the Claims Tribunal (as the judgment was already passed before 24/12/2018 on 20/12/2018); however, the same was rejected. Therefore, for bringing the aforesaid report of Investigation Officer, the Insurance Company has filed an application before this Court under Order XLI Rule

27 of CPC vide I.A.No. 1215/2022 and prayed that the finding of learned Claims Tribunal as regards fastening of liability of payment of compensation amount be set aside.

8. Learned counsel for the claimants supported the impugned award while submitting that the findings as regards liability is just and proper and after going through the documents available and therefore, needs no interference; however, if in case the appeals are allowed then in light of catena of decisions of Apex Court, the insurance company be made liable to pay the compensation, which can be recovered from respondents/driver and owner of the offending vehicles as if any breach of terms and conditions of insurance policy has been committed, then it is a matter between the owner, driver and the insurance company. The claimants being third party should not be punished, therefore, burden lies on insurance company to pay the compensation amount.

9. None appeared on behalf of the respondents/driver and owner of the offending vehicle even after service of notice.

10. Heard the learned counsel for the parties and perused the material available on record.

11. From perusal of documents filed alongwith the applications under Order XLI Rule 27 CPC, it is clear that on the date of incident the driver of the offending vehicle was not having valid driving licence to drive the offending vehicle and further the vehicle was being run without any permit as it is specifically written on the document that "daI;wVj esa ntZ vfHkys[kkuqlkj ?kVUkk fnukad 10-1-2015 dksbZ ijfeV okgu dza0 MP06R0566 dk tkjh gksuk ugha ik;k tkrk gS A" and document is attested by Secretary, Regional Transport Authority, Chambal Division Morena and pleadings in this regard were also raised in written statement and therefore, Claims Tribunal

erred in fastening the liability for payment of compensation amount over the Insurance Company. Therefore, while modifying the findings as given by Claims Tribunal as regards fastening of liability of payment of compensation amount, both appeals are allowed and since the vehicle was being plied without valid driving licence and permit, the liability is fastened over the driver and owner of the offending vehicle. However; in light of the decision of the Supreme Court in the case of Shivaraj Vs. Rajendra [(2018) 10 SCC 432], Manuara Khatun Vs. Rajesh Kumar Singh [2017 ACJ 1031] & Shamanna and another Vs. Divisional Manager, the Oriental Insurance Co. Ltd. and others,[(2018) 9 SCC 650] wherein, it has been observed that "in the case of breach of policy directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured be given by applying the principle of "pay and recover". The Insurance Policy is a contract between the insured and the insurer and the insurer agrees to indemnify the insured against all the claims arising out of use of vehicle, however, such contract is subject to the conditions that the vehicle shall not be plied or driven contrary to the provisions of law as well as Insurance Policy. Thus, it is clear that the insurer / Insurance Company can get away from its liability of indemnifying the insured by proving that the vehicle was being used contrary to the Insurance Policy. However, the claimants are completely stranger to the contract between the insured and the insurer. Once, the Insurance Company had agreed to indemnify the insured than it would be a dispute between the insured and the insurer as to whether the vehicle was being used contrary to the conditions of Insurance Policy or not? But the claimants cannot be made to suffer because of inter se dispute between the insured and the insurer. Once, the vehicle is insured, then the Insurance Company must satisfy the award and if it is found by the Claims

Tribunal that the vehicle was being used contrary to the conditions of Insurance Policy, then the right to recover the amount has been given to the Insurance Company without filing a separate suit against the insured" the Insurance Company is directed to make the payment of compensation amount as per impugned award to the claimants of both appeals first with a right to recover the same from the owner and driver of the offending vehicle. Rest of the conditions as imposed by the Claims Tribunal shall remain intact.

12. Resultantly, while allowing both the appeals, the impugned Award dated 20/12/2018 passed by Second Additional Motor Accident claims Tribunal, Jaura, District Morena in Claims Case Nos. 9/2015 and 164/2015 is modified to the extent mentioned above.

(ROOPESH CHANDRA VARSHNEY) JUDGE jps/-

JAI       Digitally signed by JAI PRAKASH SOLANKI
          DN: c=IN, o=HIGH COURT OF MADHYA
          PRADESH BENCH GWALIOR, ou=HIGH COURT



PRAKASH
          OF MADHYA PRADESH BENCH GWALIOR,
          2.5.4.20=287738d30aabaeda9b10cecdf179cec
          865c7633f4cfb9e38ce14fcbb05b9522a,
          postalCode=474001, st=Madhya Pradesh,
          serialNumber=8D6BC1C9FCE36623D0BD6B80



SOLANKI
          72A2D8C01433EBD48AE4F609F108CA8F8DE6
          B522, cn=JAI PRAKASH SOLANKI
          Date: 2024.02.12 12:23:05 +05'30'