Telangana High Court
M/S. United India Insurance Company ... vs Sharada Ganga Rao And Another on 3 January, 2025
Author: N.Tukaramji
Bench: N. Tukaramji
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A. No.917 OF 2005
JUDGMENT:
Heard Mr. N.Chandrasekhar Rao, learned counsel
representing Mr.A.Ramakrishna Reddy, learned counsel for
appellant/respondent No.2/insurer and Mr. B.Parameshwra Rao,
learned counsel for the respondent No.1/claimant.
2. This appeal has been preferred by the insurer/respondent
No.2 challenging the liability fastened to pay and recover the
compensation amount from the owner of the crime vehicle
/respondent No.1 in decree and judgment dated 17.12.2004 in
O.P.No.562 of 2000 on the file of the Chairman, Motor Accidents
Claims Tribunal-cum-II Additional District Judge, Ranga Reddy
District.
3. Learned counsel for the insurer/respondent No.2 would
plead that even as per the petition on the date of the occurrence
i.e. on 07.09.1999 the claimant boarded a tanker lorry/crime
vehicle and at Akupamula village, the driver drove the vehicle in
rash and negligent manner and caused the accident whereby the
claimant suffered grievous injuries. Further pleads that though
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MACMA_917_2005
the tribunal recorded that the claimant is an unauthorized
passenger directed the insurer/respondent No.2 to pay the
awarded amount of Rs.1,50,000/- with interest at 9% per annum
and recover the same from its insured/owner of the crime vehicle.
As it has been held that the claimant is an unauthorized
passenger, the insurer ought not have been held liable to pay
compensation, thus, the direction to pay and recover is
unsustainable.
4. Learned counsel for the respondent No.1/claimant
supported the impugned order passed by the Tribunal.
5. I have perused the materials on record.
6. The issue falls for consideration is whether the direction to
pay and recover is sustainable in law and on facts?
7. Admittedly, the crime vehicle/lorry was insured with the
insurer/respondent No.2 and by the date of accident the policy is
in force. Further the accident, injuries to the claimant are
evidencing that the claimant was travelling in the tanker lorry as
passenger. Thus the status of the unauthorized/gratuitous
passenger of the claimant can safely be concluded.
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MACMA_917_2005
8. Similar aspect fell for consideration before the Hon'ble
Supreme Court in the authority between Anu Bhanvara and
others v. Iffco Tokio General Insurance Company Limited and
others - (2020) 20 SCC 632. The relevant observations are
extracted hereunder:
"The next question is as to which of the respondents, that is the owner
and driver, or the insurer of the vehicle, would be liable for payment of
such compensation. As regard the liability for payment of
compensation, it has been contended by the learned counsel for the
appellants that since the vehicle was admittedly insured with the
respondent no.1insurance company, the principle of pay and recover
would be invoked even in case of a gratuitous passenger in a goods
vehicle. The insurance company should thus be made liable for the
payment of compensation to the appellants and in turn they would
have the right to realise/recover the same from the owner and driver of
the vehicle. In support of his submission, learned counsel for the
appellants has relied on the following decisions of this Court, namely,
Manuara Khatoon v. Rajesh Kumar Singh (2017) 4 SCC 796,
Puttappa v. Rama Naik (Civil Appeal No.4397 of 2016, disposed of on
2 nd April, 2018); Manager, National Insurance Co. Ltd. v. Saju P.
Paul (2013) 2 SCC 41; New India Assurance Co. Ltd. v. Vimal Devi
(Civil Appeal Nos.15781579 of 2004, disposed of on 5th October,
2010); National Insurance Co. Ltd. v. Challs Upendra Rao (2004) 8
SCC 517; New India Assurance Co. Ltd. v. C. M. Jaya (2002) 2 SCC
278; Amrit Lal Sood v. Kaushalya Devi Thapar (1998) 3 SCC 744.
10. Per contra, learned counsel for the respondent insurance
company has contended that since the claimants were gratuitous
passengers in a goods vehicle, in which case the liability for payment
of compensation for death or body injury to the passengers of such
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MACMA_917_2005
goods vehicle would not be covered, hence the principle of pay and
recover would not apply. It has thus been contended that the order of
the High Court is perfectly justified in law and calls for no interference
by this Court. In support of her submission, learned counsel has relied
on following decisions, namely, New India Assurance Co. Ltd. v. Asha
Rani (2003) 2 SCC 223; National Insurance Co. Ltd. v. Baljit
Kaur (2004) 2 SCC 1; National Insurance Co. Ltd. v. Kaushalya
Devi (2008) 8 SCC 246; National Insurance Co. Ltd. v. Rattani (2009)
2 SCC 75; National Insurance Co. Ltd. v. Prema Devi (2008) 5 SCC
403; Bharat AXA General Insurance Co. Ltd. v. Adani
MANU/TN/6503/2018; Bajaj Allianz General Insurance Co. Ltd. v. Lal
Singh (2015) SCC Online Del 7508.'
11. We have heard learned counsel for the parties and perused the
record as well as the various decisions cited by learned counsel for
the parties. The insurance of the vehicle, though as a goods vehicle, is
not disputed by the parties. The claimants in the present case are
young children who have suffered permanent disability on account of
the injuries sustained in the accident. Thus, keeping in view the
peculiar facts and circumstances of this case, we are of the
considered view that the principle of "pay and recover" should be
directed to be invoked in the present case."
9. Having regard to the pleading of dependency of the
petitioners, in the light of above dictum and the admitted fact of
existence of insurance policy, fixing liability against the
insured/respondent No.1 and granting liberty to the
insurer/respondent No.2 to recover from the insured based on the
principle of pay and recover is found justified. In the absence of
any impropriety or illegality, this appeal fails on merit.
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MACMA_917_2005
10. In the result, the appeal is dismissed. There shall be no
order as to costs.
As a sequel, pending miscellaneous petitions if any, stands
closed.
_______________
N.TUKARAMJI, J
Date:03.01.2025
ccm
