Madhya Pradesh High Court
Cholamandalam Ms General Insurance ... vs Pappu on 24 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:28033
1 MA-6702-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 24th OF SEPTEMBER, 2025
MISC. APPEAL No. 6702 of 2019
CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD.
Versus
PAPPU AND OTHERS
Appearance:
Shri Pankaj Kumar Jain, learned counsel for the appellant.
Shri Suraj Yadav, learned counsel for the respondents No.2 and 4.
ORDER
The appellant-Insurance Company has filed this appeal under Section
173 of Motor Vehicles Act being aggrieved by the award dated 28.8.2019
passed in Claim Case No.196/2018 challenging the part of direction of pay
and recover even after recording the finding that deceased Rohit was sitting
on mudguard of the Tractor, thus Insurance Company is not liable to pay
compensation for his death.
2. Short facts of the case are that on 1.7.2018 at around 1.30 in the
afternoon Driver of Tractor No.MP-45-AC01006 was driving the same in
rash, negligent and very fast manner in village Hatyadeli, because of which
Rohit and Munesh suffered injuries and Rohit died out of those injuries.
2.1 An FIR was registered, which is Ex.P/2 in which description of the
accident was recorded by father of deceased Rohit by clearly stating that his
son Rohit sitting on the Tractor and Munesh was standing. The claims
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Tribunal considered the evidence and recorded finding in para 16 to 18 of the
award, whereby it was recorded that deceased Rohit was sitting on mudguard
of the Tractor as a unauthorized passenger. Thus, he was not covered under
the insurance policy Ex.D/2, which covered only Driver. The claims Tribunal
after recording that deceased was not covered under the policy, still directed
in para 19 of the award first to pay compensation to the claimants and then
recover the same from owner/Driver of the vehicle.
3. Learned counsel for the appellant/Insurance Company submits that
once it was proved that the case was of "No Insurance" as the person sitting
on Tractor was not covered under the insurance policy, then no direction to
pay and recover could have been issued. He placed reliance on the order
passed by coordinate Bench of this Court in M.A.No.3130/2013 (Shriram
General Insurance Co.Ltd. Vs. Sheela Bai and others), M.A.No.2218/2011
(Sheelabai and another Vs. Santosh and others ) and M.A.No.85/2009
(Oriental Insurance Co.Ltd. Vs. Richhabai and others ) reported in 2012 ACJ
2196.
4. Per contra, learned counsel for the respondents No.3 and 4/Owner
and Driver, tried to demonstrate before this Court by referring para 14 of the
award that in fact Rohit was not sitting on the Tractor, but standing on the
road alongwith Munesh. Thus, the Insurance Company should be made
liable to pay the compensation. He also referred to the statement of Pappu
(AW-1), who lodged FIR and tried to establish that contents of the FIR was
explained by him before the Tribunal in as much as he stated that Police did
not read over FIR to him and it has incorrectly been recorded that deceased
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was sitting on the Tractor.
5. Heard learned counsel for the parties; perused the record.
6. As far as contention of the learned counsel for the respondents No.3
and 4 is concerned, it has to be kept in mind that findings of the claims
Tribunal with respect to sitting of deceased Rohit on Tractor are not under
challenge. The Owner/Driver have not filed any appeal challenging
conclusion of the claims Tribunal. This is an appeal by the Insurance
Company only to the limited extent that based on the findings recorded by
the claims Tribunal directing to pay and recover could not have been made.
As such, contention of the learned counsel for respondents No.3 and 4 is
hereby repelled. As regards contention of Insurance Company that deceased
Rohit was sitting on the Tractor and Insurance Company did not cover him
in terms of the policy, thus it became a case of No Insurance and thus, pay
and recover could not have been directed. The law i very clear in this regard.
This Court in the case of Sheelabai (supra) has held in para 20 to 24 as
under:-
"20. In the case of Manuara Khatun and others Vs.
Rajesh Kumar Singh and others (2017) 4 SCC 796 ,
Hon'ble Supreme Court reaffirmed and applied the "pay
and recover" principle for gratuitous passengers. In the
case of Shivraj Vs. Rajendra and another , (2018) 10
SCC 432, principle of "pay and recover" was again
reiterated.
21. Thus, there is a dilemma. On the one hand, Hon'ble
Supreme Court in the case of Asha Rani and others
(supra), has categorically held that since policy does not
cover gratuitous passengers and there being no
coverage, insurance company is not liable to pay
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compensation in the case of gratuitous passengers.
22. In the case of Parvathneni and another (supra),
Three Judges Bench of Hon'ble Supreme Court had an
occasion to deal with the issue, but, it observed that
keeping in view the smallness of the amount involved,
we are not inclined to entertain this petition under
Article 136 of the Constitution of India. The Special
Leave Petition is dismissed accordingly. The questions
of law raised in this petition are kept open to be decided
in an appropriate case. Thus, it is evident that since the
law laid down by Hon'ble Supreme Court in the case of
Asha Rani and others (supra), still holds the field and
the basic principle as has been reiterated thereafter is the
same that gratuitous passengers travelling in a goods
vehicles are not covered under the terms and conditions
of the policy, therefore, there cannot be any coverage
for them.
23. Learned counsel for the appellant/insurance
company has also relied upon the judgment of this
Court passed on 31st October, 2023 in
M.A.No.5896/2022 (Colamandalam MS General
Insurance Com. Ltd. Vs. Abdul Karim Khan and
others). Since this Court has already discussed the
judgments of three Judges Bench of Hon'ble Supreme
Court, therefore, there is no need to go through the said
judgment of this Court separately.
24. Accordingly, being conscious of this fact that
authority exercised by Hon'ble Supreme Court under
Article 142 of the Constitution of India is not available
to this Court, then three Judges Bench strength
judgment in Asha Rani and others (supra) is a binding
precedent. These miscellaneous appeals are required to
be allowed and the same are hereby allowed. It is
directed as under :-
"(i) The principle of "pay and recover" is not
available in case of gratuitous passengers in a
goods vehicles;
(ii) In case Insurance Company has already
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paid compensation, it will be entitled to
recover it from the owners of the offending
vehicles."
7. In Sheelabai Vs. Santosh (supra) this Court has held in para 11
to 13 as under:-
"11. In the present cases, it has been admitted by
respondent No.1 that he is the owner of the tractor and
that the deceased was his employee. Accordingly, in
view of the law laid down by the Hon'ble Apex Court in
the case of Brij Mohan (Supra), the labourer is not
covered under the policy of insurance. In this view of
the matter, this Court does not find any infirmity in the
conclusion arrived at by the Labour Court that the
injured was not covered under the Insurance Policy.
Therefore, the Insurance Company is not liable to make
payment.
12. As regards the case law relied upon by the learned
counsel for the appellants, it is noted that those cases
were decided prior to the judgment of the Hon'ble Apex
Court in Brij Mohan and Ors. (Supra), which now
governs the fields.
13. As regard the judgment of Gurmail Singh (Supra),
the facts of that case were different, inasmuch as it
involved a breach of the Insurance Policy due to the
absence of a driving licence with the driver of the
vehicle. Thus, it was not a case of no insurance, whereas
the present case involves no insurance coverage for
labourers, as they were not covered under the insurance
policy at all. Hence, in the considered view of this
Court, a direction for pay and recover cannot be issued
in the present case."
8. It is, thus clear that once it is established by the Insurance Company
that deceased was not covered under the policy the direction for pay and
recover could not have been given by the claims Tribunal. Hence, the appeal
is allowed. The direction given by the claims Tribunal to the Insurance
Company to first pay and then recover from the owner/Driver is hereby set
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aside. The rest part of the award shall remain intact.
9. Counsel for the Insurance Company submits that pursuant to the
order dated 12.12.2019, 50% of the awarded amount has been deposited by
the Insurance Company before the claims Tribunal. It is directed that if the
same has not been disbursed to the claimants, then it be refunded to the
Insurance Company. However, if it has already been disbursed to the
claimants, then the same can be recovered by the Insurance Company from
the owner/Driver and not from the claimants.
(PAVAN KUMAR DWIVEDI)
JUDGE
patil
