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Judgment
. Heard.
By way of present appeal, challenge is to the judgment and order dated 26.06.2019 passed by the Motor Accident Claims Tribunal, Chandrapur in MACT No.128/2014. The appellant herein is the Insurance Company who has raised a grievance that learned Tribunal has committed an error in issuing directions of ‘pay and recover’ in the matter, which is not just and proper in the facts and circumstances of the case.
Before the Claims Tribunal, the case of the claimant was that the deceased Sachin along with one Vikas was proceeding from village Nandgur towards Chandrapur for attending labour work. Both of them were waiting for a bus at Nandgur at around 6 a.m., at that time, the goods vehicle Matador bearing registration No. MH 33/G–1172 came from Gadchiroli and the deceased has boarded in the said vehicle which was for Goods Vehicle. After boarding of the deceased in the vehicle, the accident was occurred. Vikas who was accompanied with the deceased and travelling in the bus, after he alighted from the bus, he got knowledge that deceased was seriously injured in the said accident as the injury was caused to his head. Accordingly, deceased was taken to the Government Hospital, Chandrapur, where he was succumbed to his injuries. Accordingly, the offence was registered against the driver of the offending vehicle vide Crime No.211/2014, on 04.07.2014 at Police Station, Ram Nagar, Chandrapur.
The respondents claimants who are the dependents of the deceased filed the claim petition before the Claims Tribunal and thereby claimed the compensation of Rs.1 Lakh.
The said petition was contested by the respondents. According to the respondents, the deceased was solely responsible in the matter as he was not expected to travel as a gratuitous passenger in a Goods Vehicle. Therefore, the person who was travelling as a gratuitous passenger in the Goods Vehicle as per the law laid down by the Hon’ble Supreme Court, the Insurance Company is not responsible to pay the compensation in such cases.
Learned Tribunal in light of the submissions made by the parties has considered the submission raised by the appellant Company and held that though it is well settled position of law that for a gratuitous passenger in Goods Vehicle, the Insurance Company is not responsible, however the Company cannot be absolved from his responsibility to satisfy the decree and recover the amount from the owner of the vehicle. Accordingly, claim petition was decided and the claimants were held to be entitled for the compensation of Rs.9,66,000/- towards the compensation and appellant Insurance Company was directed to satisfy the compensation and then recover from the owner of the vehicle.
In the present appeal, the only ground raised by the appellant is that the order of pay and recover was not proper in the facts and circumstances of the case. According to the appellant, it was the case of claimants that deceased, who was waiting for a bus at Nandgur phata has requested the driver of the vehicle to allow him to travel in a goods vehicle. Hence, considering this particular fact of the matter, it is the submission of the appellant that this case is to be considered as case of tortfeasor and, therefore, appellant Insurance Company cannot be permitted to satisfy the decree and then recover the amount from owner of vehicle.
In light of this submission, the appellant has relied upon the judgment of this Court in the case of M/s New India Assurance Co. Ltd., through its Divisional Manager, Nagpur Vs. Desu Rajlaxmi wd/o Satyanandam and others in First Appeal No.235/1995. In this case, this Court has held that the gratuitous passengers are not entitled for any amount from the Insurance Company, as the Insurance Company is not responsible to pay the compensation as per the terms of the policy. It is pointed out from the judgment that this Court has not passed the order of pay and recover. Hence, applying the same principle, the learned Claims Tribunal should have decided the claim petition in the matter.
The appellant then relied upon the judgment of Hon’ble Supreme Court of India in case of Shamanna and another Vs. Divisional Manager Oriental Insurance Company Limited and others report in (2018) 9 SCC 650. According to her, in the judgment of the Hon’ble Supreme Court, in paragraph No.5, the summary of findings to various issues as to how principle of pay and recover has been discussed and relying on the said principles, the appellant cannot be held responsible to satisfy the decree and then recover the compensation from the owner of the vehicle.
The respondents claimants has relied upon the judgment of the Hon’ble Supreme Court, in case of SLP (C) Nos.7139-7140 of 2023, K. Nagendra Vs. The New Indian Insurance Co. Ltd. And ors. wherein the Hon’ble Supreme Court has held that the purpose of Insurance policy is to shield the owner/operator from direct liability when unfortunate incident takes place, Thereby victims get immediate compensation in the matter. Hence by considering this principle the Hon’ble Supreme Court has observed in paragraph No.10 as under:
“10.At the same time though, when an Insurance Company takes on a policy and accepts payments of premium in pursuance thereto, it agrees to do so within certain bounds. The contract lays down the four corners within which such an insurance policy would operate. If that is the case, to expect the insurer to pay compensation to a third party, which is clearly outside the bounds of the said agreement would be unfair. Balancing the need for payment of compensation to the victim vis-à-vis the interests of the insurer, the order of the High Court applying the pay and recover principle, in our considered view, is entirely justified and requires no interference.”
It is further pertinent to note that the Hon’ble Supreme Court of India in case of Sunita Vs. United India Insurance reported in Menu/SC/0934/2024, wherein also the policy of the offending vehicle was “liability only policy” and no premium was paid to cover driver, owner or a gratuitous passenger, travelling therein. However, the Hon’ble Supreme Court has held in view of the law laid down in case of National Insurance Co. Ltd. Vs. Baljit Kaur and Ors. reported in (2004) ACC 259, Insurance Company is liable to pay the compensation to the claimants appellants under the principles of pay and recover.
Moreover, the Hon’ble Supreme Court in case of Akula Narayana Vs. The Oriental Insurance Company Limited and Ors. in Civil Application No.13509/2025 has also considered the same issue and held that “when the contract of insurance is not disputed, even on breach of insurance conditions, this Court had allowed recovery of compensation from the insurer by giving right to the insurer to recover the same from the vehicle owner.
The pay and recover principle has been consistently followed. In my considered opinion, to balance the need for payment of compensation to the victim vis-a-vis the interest of the insurer, the order of Claims Tribunal to pay and recover is justified and requires no interference.
In light of this settled principle of law, I am of the opinion that learned Tribunal has rightly considered the controversy involved in the matter and the fact that at the time the accident, the vehicle was insured and there was breach of the condition, it is not the case that the vehicle was not at all insured in the matter. Hence in my view, there is no merit in the present appeal and the appeal stands dismissed.
No order as to the costs.