Bajaj Allianz Insurance Company Ltd vs Joginder Pal And Others

The present appeal has been filed by the appellant against the award dated 30.11.2018 passed by the Motor Accidents Claim Tribunal, Kathua (for

short the Tribunal) in a claim petition No. 10/2016, titled, Joginder Pal and another vs Sukhbir Singh and others, by virtue of which the appellant has

been directed to pay Rs. 7,78,000/- along with interest at the rate of 7.5% per annum till its realization.

The present appeal has been filed solely on the ground that the deceased was travelling on the alleged offending vehicle, i.e. Tractor bearing

registration No. JK08C 5607 as a gratuitous passenger and the appellant could not have been saddled with the responsibility of satisfying the award

passed by the learned Tribunal. It is further stated that the liability of the insurance company-appellant is only to indemnify the insured and once the

learned Tribunal has recorded its finding that the insurance company is not liable to indemnify the insured, the appellant could not have been directed

to satisfy the award vis a vis a gratuitous passenger.

Mr. Baldev Singh, learned counsel for the appellant has reiterated the grounds those have been taken in the memo of appeal. A perusal of the

award reveals that while deciding issue No. 3, the learned Tribunal has held that the deceased was travelling on a tractor as a gratuitous passenger so

the respondent No. 3, appellant herein is not liable to pay any compensation to the claimants, respondent Nos. 1 and 2 herein. However, the learned

Tribunal while relying upon the judgments of the Apex Court in National Insurance Company Limited v Swaran Singh and others, AIR 2004 SC 1531

and Kusum Lata v Satbir, AIR 2011 SC 1234, has directed the appellant to satisfy the award amount with a liberty to recover the said amount from

the insured, respondent No. 3 i.e. owner of the offending Tractor.

The principle of pay and recover in case of offending Tractor has been reiterated by the Apex Court in Shivraj vs. Rajindra and another, 2018 (10)

SCC 432.The relevant paragraph No. 10 is reproduced as under:

“…..in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the

claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in

National Insurance Co. Ltd. Vs. Swarna Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co. Ltd.2, Rani & Ors. Vs. National Insurance Co.

Ltd. & Ors.3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others.4 In other words, the High Court should have partly

allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance

Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with

liberty to recover the same from the tractor owner (respondent No.1)â€​

In view of observations made by the Apex Court in Shivraj’s case (supra), no fault can be found with the award passed by the learned Tribunal

in view thereof, the appellant was directed to satisfy the award amount with liberty to the appellant to recover the same from the owner of the vehicle

i.e. respondent No. 3.

In view of what has been discussed above, this appeal has not merit and the same is ,as such, dismissed.

Award amount be released in favour of the respondents/claimants in terms of conditions imposed by the learned Tribunal in the award after due

verification.