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Rajasthan High Court · body

2022 DIGILAW 2557 (RAJ)

Mst. Madhu v. Mukesh Kumar

2022-10-10

ANOOP KUMAR DHAND

body2022
JUDGMENT 1. Instant appeal has been preferred by the claimants-appellants against the impugned judgment and award dated 27.07.2006 passed by the Court of Motor Accident Claims Tribunal, Bandikui, Rajasthan (hereinafter referred to as ’the Tribunal’) in Motor Claim Case No.81/2006 by which claim petition filed by the claimants-appellants was allowed and the respondentinsurance Company has been exonerated and the respondent Nos. 1 & 2 (driver & owner) of the vehicle have been directed to pay the compensation of Rs. 4,14,600/- to the claimants-appellants. 2. Learned counsel for the claimants-appellants submits that while deciding the issue No.3, the Tribunal has recorded an erroneous finding that the deceased was travelling in vehicle in the capacity of a passenger. Counsel further submits that no evidence was led on behalf of the respondent-insurance Company that there was any breach of policy or that the deceased was travelling in the vehicle in the capacity of gratuitous passenger. Counsel submits that even if this fact is treated as it is, then also the direction could have been issued by the Tribunal to the respondent-insurance Company to first pay the amount of compensation to the claimants-appellants and then recover the same from the driver and owner of the offending vehicle. 3. In support of his contention, learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in the case of Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., reported in 2017 (1) WLC (SC) Civil 488. Counsel submits that in view of the submissions made here-in-above, the findings recorded by the learned Tribunal on issue No.3 may be modified and directions may be issued to the respondent-insurance Company to pay the amount of compensation to the claimants-appellants and then recover the same from the driver and owner of the offending vehicle. 4. None has put in appearance on behalf of the respondent Nos. 1 & 2 (driver and owner) of the vehicle in spite of service of notices. 5. On the other hand, learned counsel for the respondentinsurance Company opposed the arguments raised by the counsel for the appellants-claimants and submits that the vehicle in question was insured for private use only but the deceased was travelling in the vehicle in the capacity of a gratuitous passenger. 5. On the other hand, learned counsel for the respondentinsurance Company opposed the arguments raised by the counsel for the appellants-claimants and submits that the vehicle in question was insured for private use only but the deceased was travelling in the vehicle in the capacity of a gratuitous passenger. Hence, there was a breach of policy and the Tribunal has not committed any error while deciding issue No.3, in favour of the respondent-insurance Company and in exonerating them. Counsel for the respondent-insurance Company is not in a position to controvert the issue decided by the Hon’ble Apex Court in the case of Manuara Khaturn (supra). 6. Heard the rival submissions and perused the record. 7. This fact is not in dispute that the accident has occurred on 12.06.2002 when the deceased was travelling in a Jeep bearing No.RJ-25-C-0135. This fact is also not in dispute that the accident occurred with the said vehicle in which the deceased sustained certain injuries and died. 8. The only question which remains before this Court is that whether the Tribunal has committed an error while deciding issue No.3 in exonerating the respondent-insurance Company from its liability to make the payment of compensation to the claimants- appellants. It was the case of the Insurance Company before the Tribunal that the vehicle in question was insured for private use and the deceased was travelling in the vehicle in the capacity of a passenger. When a detailed cross-examination was done with the witness AW-2, he has not stated a single word that any amount of fare was paid to the driver of the vehicle. Though this fact has come on record that he was not acquainted with the driver of the vehicle and only on the basis of this fact, the Tribunal has decided issue No.3 in favour of the respondent-insurance Company. The Hon’ble Apex Court in the case of Manuara Khatun (supra) has dealt with an identical issue in para Nos. 16 & 18 to 23 as under:- "16. This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) 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. 16 & 18 to 23 as under:- "16. This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) 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 travelling 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 strength of the insurance policy. However, this Court keeping in view 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". 18. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul’s case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings. 19. Learned counsel for respondent No. 3 (United India Insurance Company Ltd.), however, contended that the facts of the case at hand are not identical to the one involved in the case of Saju P. Paul (supra) and hence the law laid down therein cannot be applied to the facts of the case at hand. Learned counsel pointed out that firstly, the awarded compensation in this case is quite substantial and secondly, it is not yet paid to the claimants. Learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the Insurance Company. 20. We find no merit in any of the submissions. Learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the Insurance Company. 20. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in Saju P. Paul’s Case (supra). Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Paul’s Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Paul’s case (supra). That apart, learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more. 21. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard. 22. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.l in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul’s case quoted supra. 23. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that respondent No. 3-United India Insurance Company Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). 23. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that respondent No. 3-United India Insurance Company Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter respondent No. 3 - United India Insurance Company Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending Vehicle (Tata Sumo)-respondent No.l in these very proceedings by filing execution application against the insured." 9. Furthermore, in the case of Manager, National Insurance Company Limited Vs. Saju P. Paul & Anr., reported in 2013 (2) SCC 41 , the Hon’ble Apex Court has issued directions to the respondent-insurance Company to first pay the amount of compensation to the claimants-appellants and then recover the entire amount from the driver and owner of the offending vehicle. 10. Looking to the above ratio as propounded by the Hon’ble Apex Court in the case of Saju P. Paul (supra) and Manuara Khatun (supra), the finding recorded by the Tribunal on issue No.3 stands modified and the respondent-insurance Company is directed to pay the entire amount of compensation to the claimants-appellants as per the terms of the award passed by the Tribunal and then recover the same from the driver and owner of the offending vehicle in accordance with law by filing an execution application. 11. With the observations recorded above, the appeal stands disposed of. 12. Respondent-Insurance Company is directed to deposit the amount of award with the Tribunal within a period of two months from the date of receipt of certified copy of this judgment. 13. The Tribunal is directed to disburse the amount of compensation to the claimants-appellants in terms of the award. 14. The office is directed to send the record to the Tribunal.