Telangana High Court
The Oriental Insurance Company Ltd vs Bandi Thirupathi And 2 Ors on 27 March, 2024
HON'BLE SRI JUSTICE K.SURENDER
MACMA.No. 1799 OF 2011
JUDGMENT:
1. Appeal is filed by the insurance company questioning the
direction of the Tribunal to pay and recover the compensation,
though the Tribunal found that the insurance company is not liable
as the policy is 'act' policy and does not cover the risk of inmates of
the jeep, vide judgment in OP No.151 of 2007 dated 26.06.2009
passed by the Chairman, Motor Vehicle Accident Claims Tribunal-
cum-II Additional District Judge, Karimnagar.
2. The claimant, while he was traveling in the jeep as a
passenger, the respondent/driver drove it in a high speed, rash and
negligent manner resulting in the vehicle turning turtle. The
claimant received injuries and another passenger died in the said
accident.
3. The Tribunal found that the policy Ex.B1 was an 'act' policy
which was valid as on the date of the accident. However, no extra
premium was paid to cover the risk of inmates of the jeep.
4. The Tribunal further found that the policy Ex.B1 did not
cover P.W.1 (claimant) as he was a gratuitous passenger.
5. Learned counsel appearing for the insurance company
submits that in the judgment reported in the case of New India
Assurance Company, Shimla v. Kamla and others 1 basing on
which, this Court passed judgment in Oriental Insurance
Company Limited v. Akula Narayana and another 2, under
similar circumstances, this Court had found fault with the trial
Court directing insurance company to pay and recover the
compensation from owner of the vehicle. Learned counsel also
relied in the case of Balu Krishna Chavan v. The Reliance
General Insurance Company Limited and others 3 in which the
Hon'ble Supreme Court held that though pay and recover was
ordered, it cannot be made the case as a precedent, but only to
serve the ends of justice.
6. Learned counsel further relied on the judgment of Hon'ble
Supreme Court in the case of Indian Bank v. ABS Marine
(2001) 4 Supreme Court Cases 342
2022 LawSuit (TS) 1652
2022 LiveLaw (SC) 932
Products (P) Ltd., 4 and argued that the Hon'ble Supreme Court
passes orders under Article 142 of the Constitution of India, unless
specifies that such order has to be followed, cannot be followed by
the courts below. The relevant paragraph is extracted hereunder:
"26. One word before parting. Many a time, after declaring the law, this
Court in the operative part of the judgment, gives some directions which
may either relax the application of law or exempt the case on hand from
the rigour of the law in view of the peculiar facts or in view of the
uncertainty of law till then, to do complete justice. While doing so,
normally it is not stated that such direction/order is in exercise of power
under Article 142. It is not uncommon to find that courts have followed
not the law declared, but the exemption/relaxation made while moulding
the relief in exercise of power under Article 142. When the High Courts
repeatedly follow a direction issued under Article 142, by treating it as
the law declared by this Court, incongruously the exemption/relaxation
granted under Article 142 becomes the law, though at variance with the
law declared by this Court. The courts should therefore be careful to
ascertain and follow the ratio decidendi, and not the relief given on the
special facts, exercising power under Article 142. One solution to avoid
such a situation is for this Court to clarify that a particular direction or
portion of the order is in exercise of power under Article 142. Be that as
it may."
7. On the other hand, learned counsel for the
respondent/claimant would submit that the Tribunal has correctly
passed orders granting compensation and directing the insurance
company to pay amount and recover from the owner. He relied on
the judgment of Hon'ble Supreme Court in the case of Manuara
Khatun and others v. Rajesh Kumar Singh and others 5.
(2006) 5 Supreme Court Cases 72
(2017) 4 Supreme Court Cases 796
8. The Hon'ble Supreme Court in Manuara Khatun's case
(supra) and Balu Krishna Chavan's case (supra) found that the
ends of justice would be served if the insurer is asked to pay the
compensation amount and then recover from the owner. However,
in Balu Krishna Chavan's case, the Hon'ble Supreme Court held
that the order to pay and recover shall not be made as precedent
but to serve the ends of justice in the facts of the case.
9. In the present case, the Tribunal directed that compensation
has to be paid by the insurer and recover from the owner of the
vehicle. In appeal, this Court by order dated 18.02.2010 granted
interim stay on condition of payment of 50% of the decreetal
amount with interest to be deposited within a period of six weeks.
10. It is represented by the learned counsel for the insurance
company that in accordance with the direction passed by this
Court on 18.02.2010, 50% of the amount has already been
deposited.
11. Accident is of the year 2000 and compensation was granted
in the year 2009 after 9 years of the accident.
12. In the peculiar facts of the present case while partly
upholding the order of the Tribunal to pay and recover, this Court
deems it appropriate to direct the insurance company not to claim
the deposited amount, pursuant to order of this Court dated
18.02.2010. The remaining amount of 50% of compensation shall
be recovered from owner of vehicle by the claimants. Needless to
say, the amount already paid by the insurance company can be
recovered from the owner of the vehicle.
13. Accordingly, Appeal filed by the insurance company is
ordered.
___________________
K.SURENDER, J
Date: 27.03.2024
kvs
