Uttarakhand High Court
8 September vs Savitri And Others on 18 September, 2025
2025:UHC:8427
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 251 of 2024
18 September, 2025
The New India Assurance Company .........Appellant
Versus
Savitri and others .............Respondents
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Presence:-
Mr. D C S Rawat, learned counsel for the appellant/Insurance
Company.
Ms. Sazia Parveen proxy counsel for Mr. Parikshit Sani, learned
counsel respondent nos. 1 to 5.
Despite sufficient service, none has put in appearance on behalf of
respondent no.7.
No representation for respondent no.8.
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Hon'ble Mr. Alok Mahra, J.
The present appeal under Section 173 of the
Motor Vehicles Act, 1988 has been preferred by the
appellant/Insurance Company challenging the judgment
and award dated 27.04.2024 passed by the learned Motor
Accident Claims Tribunal/1st Additional District Judge,
Haridwar in M.A.C.P. No. 18 of 2020, whereby
compensation of ₹15,37,250/- along with simple interest
@ 6% per annum has been awarded in favour of the
claimants/respondents against the appellant/Insurance
Company.
2. The case of the claimants, as pleaded in the
claim petition, is that on 24.12.2018 at about 5:00 a.m.,
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the deceased Deshraj was driving a tractor-trolley bearing
registration no. UK-17A-0839 loaded with poplar wood to
Jamuna Nagar Timber Market. Respondent no. 8, the
tractor driver, drove the vehicle rashly and negligently
near Sugar Mill, Saharanpur, as a result of which the
tractor-trolley climbed over a divider, causing fatal
injuries to Deshraj. It was alleged that the entire fault lay
with driver i.e. respondent no. 8 and that the deceased
was the sole breadwinner of the family. The claimants
accordingly claimed compensation of ₹45,45,000/-.
3. On the basis of the pleadings and evidence, the
Tribunal framed the following issues:
i. Whether the accident dated 24.12.2018 at
about 5:00 a.m. occurred due to rash and
negligent driving of tractor-trolley no. UK-
17A-0839 by respondent no. 8, resulting
in the death of Deshraj?
ii. Whether the driver of the tractor had valid
and effective driving licence, permit,
insurance, fitness, and other documents at
the time of accident.
iii. Compensation.
4. In support of their claim, the claimants relied
upon documents including the insurance policy of the
tractor, FIR, charge-sheet, post-mortem report, map,
Aadhar cards and educational certificates. Smt. Savitri
(PW-1) and Ramdas (PW-2) were examined in oral
evidence. On behalf of the appellant-Insurance Company,
Mahendra Rawat (DW-1) and Nishant Uniyal (DW-2) were
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examined. Documentary evidence included the insurance
policy, driving licence and enquiry report. Respondent
no. 8, the driver, also filed written statement denying
negligence and asserting that he possessed a valid
licence and that the vehicle was duly insured. The
appellant/Insurance Company, in its written statement,
denied liability and pleaded that the tractor was meant
solely for agricultural use, had only one authorized seat,
and was not permitted to carry any other person. It was
further contended that the deceased, being an
unauthorized passenger, fell outside the policy coverage
and therefore the insurer could not be held liable.
8. After hearing the parties and upon perusal of
the evidence led by the parties, the learned Tribunal
passed the impugned judgment and award, as above. On
issue no. 1, the Tribunal held that the accident occurred
due to rash and negligent driving of respondent no. 8,
and decided the issue in favour of the claimants. On
issue no. 2, the Tribunal found that the driver possessed
a valid and effective licence and that the vehicle was
insured and had valid documents. On issue no. 3, the
Tribunal found that though the deceased was travelling
as a passenger unauthorisedly in the tractor, which
amounted to violation of policy conditions, yet applying
the principle of "pay and recover," the Insurance
Company was directed to pay the compensation first and
recover it from the owner and driver.
9. After taking into consideration the evidence led
by the claimants and the pleadings of the parties, The
Tribunal assessed the monthly income of the deceased,
being an unskilled labourer, at ₹8,300/- and his annual
income at ₹99,600/-. After adding 25% for future
prospects, deducting 1/4th towards personal expenses,
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and applying the multiplier of 14 (as per Sarla Verma v.
DTC, 2009 ACJ 677) for the age of 43 years, the Tribunal
assessed the dependency compensation at ₹10,45,800/-.
Further amounts of ₹15,000/- for loss of estate,
₹15,000/- for funeral expenses, and ₹2,00,000/- towards
consortium were added, thus computing total
compensation at ₹15,37,250/- with interest @ 6% p.a.
10. Learned counsel for the appellant would
submit that the Tribunal itself held that the deceased
was an unauthorised/gratuitous passenger on the
tractor, which was insured only for the driver's use. The
policy did not cover such risk, and therefore the insurer
could not be saddled with liability. It was further
contended that the Tribunal erred in directing the
Insurance Company to pay the compensation and then
recover it from the owner and driver.
11. Heard and perused the material on record.
12. The Tribunal has recorded categorical findings
that (i) the accident occurred due to rash and negligent
driving of respondent no. 8, (ii) the driver had a valid
licence and the vehicle had valid documents, and (iii) the
deceased was travelling as a passenger on the tractor
unauthorisedly in violation of the terms of the policy.
13. The question that falls for consideration is
whether, in such circumstances, the Insurance Company
can still be directed to first pay the compensation and
thereafter recover it from the owner and driver.
14. The Hon'ble Supreme Court in Manuara
Khatun & Ors. v. Rajesh Kr. Singh & Ors., 2017 (2) TAC 5
(SC), after considering earlier decisions including
National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1
and National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2
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SCC 41, has categorically held that where the victim is
found to be a gratuitous passenger, the insurer cannot
be held liable under the policy. However, to balance the
benevolent object of the Motor Vehicle Act, directions can
be issued requiring the Insurance Company to pay the
awarded sum to the claimants and then recover it from
the owner/driver.
15. The facts of the present case are squarely
covered by the aforesaid decision. The Tribunal has
rightly applied the principle of "pay and recover" to
ensure that the claimants, who are dependents of the
deceased, are not left remediless, while simultaneously
protecting the insurer's contractual rights.
16. Accordingly, this Court finds no error in the
award passed by the Tribunal warranting interference in
this appeal.
17. In view of the above, the appeal fails and is
hereby dismissed.
18. There shall be no order as to costs.
19. The statutory deposit of ₹25,000/- deposited
by the appellant/Insurance Company before this Court
shall be remitted back to the concerned Tribunal.
(ALOK MAHRA, J.)
Dated: 18.09.2025
Mamta
