Madhya Pradesh High Court
United India Insurance Co. Ltd. ... vs Sheelchand Rai on 10 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 10 th OF MAY, 2024
MISC. APPEAL No. 2797 of 2009
BETWEEN:-
UNITED INDIA INSURANCE CO. LTD. JABALPUR
THROUGH ITS DIVISIONAL MANAGER, DIVISION
OFFICE, 1454, RAJKIRAN BHAVAN, WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SURESH RAJ - ADVOCATE)
AND
1. SMT. BRIJRANI W/O KISHUNLAL RAI, AGED
ABOUT 35 YEARS, VILL. KAURTA, THANA JABERA,
TEH. JABERA, DISTT. DAMOH (MADHYA
PRADESH)
2. KISHUNLAL RAI S/O ACHHELAL RAI, AGED
ABOUT 40 YEARS, VILLAGE KAURTA, JABERA,
DISTT. DAMOH (MADHYA PRADESH)
3. BANTI @ TARUN RAI S/O MUNNALAL RAI, AGED
ABOUT 20 YEARS, 159 WARD NO.8, VILLAGE
KAURTA, TEH. JABERA, DISTT. DAMOH (MADHYA
PRADESH)
.....RESPONDENTS
CIVIL REVISION No. 239 of 2009
BETWEEN:-
UNITED INDIA INSURANCE CO. LTD. JABALPUR
THROUGH ITS DIVISIONAL MANAGER, DIVISIONAL
OFFICE, 1454, RAJKIRAN BHAVAN, WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
.....PETITIONER
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 5/10/2024
5:46:24 PM
2
(BY SHRI SURESH RAJ - ADVOCATE)
AND
1. SHEELCHAND RAI S/O DAULATRAM RAI, AGED
ABOUT 44 YEARS, VILL. KAURTA, THANA JABERA,
TEH. JABERA, DISTT. DAMOH (MADHYA
PRADESH)
2. BANTI @ TARUN RAI S/O MUNNALAL RAI, AGED
ABOUT 20 YEARS, 159, WARD NO.8, KAURTA,
JABERA, DISTT. DAMOH (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
These cases arising out of the same common award dated 13/8/2008
passed by VIIIth Additional Motor Accident Claims Tribunal Jabalpur are being
disposed of with its common order.
2. Appellant and applicant/insurance company (hereinafter referred to as
"insurance company") has preferred this appeal/revision on the ground that
even after exoneration of the insurance company, the doctrine of pay and
recover has been wrongly applied. Once insurance company is exonerated has
no liability to satisfy the award amount.
3. Learned counsel for the insurance company submits that tribunal has
erred by passing the award with the direction to pay and recover in violation of
the settled legal position. Therefore, the appeal may be allowed by setting aside
the direction of pay and recover in the impugned award.
4. Heard learned counsel for the insurance company and perused the
record.
5. 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.
6. Hon'ble the Apex Court in para 21 of the case of M/s National
Insurance Company Limited vs. Baljit Kaur and others reported in
[2004(1) Scale 124] has observed that even if insurer has been exonerated
from the liability to pay the compensation even then doctrine of pay and recover
can be applied. Relevant para 21 is extracted as under :
"The upshot of the aforementioned discussions is that
instead and in place of the insurer the owner of the
vehicle shall be liable to satisfy the decree. The
question, however, would be as to whether keeping in
view the fact that the law was not clear so long such a
direction would be fair and equitable. We do not think
so. We, therefore, clarify the legal position which shall
have prospective effect. The Tribunal as also the High
Court had proceeded in terms of the decision of this
Court in Satpal Singh (supra). The said decision has
been overruled only in Asha Rani (supra). We,
therefore, are of the opinion that the interest of justice
will be sub-served if the appellant herein is directed to
satisfy the awarded amount in favour of the claimant if
not already satisfied and recover the same from the
owner of the vehicle. For the purpose of such recovery,
it would not be necessary for insurer to file a separate
suit but it may initiate a proceeding before the executing
court 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. We have issued the
aforementioned directions having regard to the scope
and purport of Section 168 of the Motor Vehicles Act,
1988 in terms whereof it is not only entitled to
determine the amount of claim as put forth by the
claimant for recovery thereof from the insurer, owner or
driver of the vehicle jointly or severally but also the
dispute between the insurer on the one hand and the
owner or driver of the vehicle involved in the accident
inasmuch as can be resolved by the tribunal in such a
proceeding."
7. Therefore, the appeal and revision filed on behalf of the insurance
company being bereft of merit, fail and are hereby dismissed.
8. Let the record of the Claims Tribunal be sent back for information and
necessary compliance.
9. A copy of this order be also kept in the record of C.R.No.239/2009.
C.C. as per rules.
(BINOD KUMAR DWIVEDI)
JUDGE
m/-
