Mohd. Abdul Majid, vs Rontala Uppaliah
2023 Latest Caselaw 926 Tel

     THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

               M.A.C.M.A. No. 486 of 2020

JUDGMENT:

On account of death of one Rontela Sridhar Raju

(hereinafter referred to as "the deceased") in the motor

vehicle accident that occurred on 27.11.2011, his legal

representatives filed M.V.O.P.No.268 of 2013 claiming

compensation of Rs.8,86,000/- towards compensation.

The Chairman, Motor Accidents Claims Tribunal-cum-VIII

Additional District Judge (FTC), Warangal, by order dated

13.09.2019, allowed the O.P. by awarding compensation of

Rs.9,61,400/- with interest at 9% p.a., to be payable by

respondent Nos.1 and 3, i.e., the owner and driver of the

offending vehicle, exonerating the insurance company on

the ground that the deceased was an unauthorized

passenger. Challenging the said findings, the owner of the

offending the vehicle filed the present appeal.

2. Heard the learned counsel for the appellant and the

learned Standing Counsel for the Insurance Company i.e.,

respondent No.6.

MGP, J Macma_486_2020

3. The main contention of the learned counsel for the

appellant is that even though the evidence discloses that

the deceased was traveling unauthorisedly in the crime

vehicle i.e., Van bearing No.AP 36 TA 3213, owned by the

appellant, still the insurance company cannot escape from

its liability to pay the compensation.

4. On the other hand, the learned Standing Counsel for

the Insurance Company, respondent No.6, has submitted

that since the deceased was neither the owner of the goods

nor was an employee under the owner of the vehicle i.e.,

appellant herein, the Tribunal has rightly termed the

deceased as an unauthorized passenger and therefore, in

view of the breach of terms and conditions of the policy,

the Tribunal has rightly exonerated the insurance company

from payment of compensation and the said finding needs

no interference by this Court.

5. There is no dispute with regard to the manner of the

accident and the rash and negligent driving on the part of

the driver of the offending vehicle in causing the accident.

MGP, J Macma_486_2020

6. As seen from the record, the claimants claimed that

the deceased was working as driver under the appellant

i.e., owner of the crime vehicle. But in support thereof no

evidence was let in by the claimants. On the other hand,

the appellant as R.W.1 deposed before this Court that the

deceased never worked as driver under him. In such

circumstances the Tribunal has rightly held that the

deceased was unauthorized passenger since the crime

vehicle is a goods vehicle. But the fact remains that at the

time of accident, Ex.B.1 policy was very much in force.

Even as per the evidence on record, the deceased was

traveling in the goods vehicle and he comes under the

category of unauthorized passenger and his risk is not

covered by the policy. In similar circumstances, in the

case of Manuara Khatun v. Rajesh Kr. Singh1, the

Hon'ble Supreme Court dealt with the case of gratuitous

passengers and held that the claimants are entitled for an

order against the insurer to pay the awarded sum to the

(2017) 4 SCC 796

MGP, J Macma_486_2020

claimants and then to recover the said amount from the

insured in the same proceedings. Further, in a recent

judgment in Anu Bhanvara v. Iffco Tokio General

Insurance Company Limited2, the Hon'ble Supreme

Court dealt with the similar issue by referring its earlier

judgments in National Insurance Co. Ltd. V. Baljit Kaur3

and Manuara Khatun (supra) apart from other judgments,

invoked the principle of 'pay and recover', in the peculiar

facts and circumstances of the case. In Manuara Khatun

(supra), the Apex Court at para No. 16 held as under:-

"16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and another (2013 (2) ALD 95 (SC)), wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was traveling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the

Laws (SC) 2019 840

2004 ACJ 428

MGP, J Macma_486_2020

strength of the insurance policy. However, this Court keeping in view of the benevolent object of the Act and other relevant factors arising in the case, issued the directions 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 the principle of "pay and recover"."

7. In view of the above, the appeal is allowed.

Following the doctrine 'pay and recover', the Insurance

Company-6th respondent herein is directed to pay the

compensation amount to the claimants, at the first

instance and thereafter recover the same from the owner of

the offending vehicle i.e., the appellant herein without

initiating any separate proceedings. There shall be no

order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________________ JUSTICE M.G.PRIYADARSINI 23.02.2023 tsr

MGP, J Macma_486_2020

THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A. No. 486 of 2020

DATE: 23-02-2023