The Oriental Insurance Co. Ltd. vs Smt. Dwarkabai Nimbalkar & Ors.

Heard.

The appellant- Insurance Company has assailed the judgment and order passed by the Motor Accident Claims Tribunal, Akola, in MACP No.108/2004 dated 31.01.2008, whereby the learned Tribunal has awarded the compensation of Rs.75,000/- to the respondent/claimant.

In the present matter, the record shows that this Court while admitting the matter has issued the notices to the respondent. The notices were duly served to the respondents. However, no one appeared on behalf of respondent in the matter. As such, this Court proceeded further and today, it is listed for final disposal. But today also, no one appeared on behalf of respondents in the matter.

In the present appeal, the respondent No.1-Claimant filed an application for compensation stating that on 16.02.2002, when she was travelling with respondent No.3 as a pillion rider of a motorcycle, on National Highway No.6, one truck coming from opposite direction gave a dash to the vehicle and she was thrown away from the motorcycle and caught inside the truck which was dragged along with her. As such, she attributed multiple injuries on several portions of her body. Hence, she has filed the application for compensation of Rs.1,00,000/- before the Claims Tribunal.

The appellant- Insurance Company in response to the notices appeared before the Claims Tribunal and filed their written statement. According to the appellant- Insurance Company, as per the policy particulars, the respondent No.3 is not owner of the motorcycle. Therefore, their submission before the Tribunal was that as per the particulars of the policy, owner should be party. It is stated that claimant has not produced any details of registration particulars of the vehicle. It is further stated that non-applicant who was driving the motor bike was himself negligent, hence respondent-Insurance Company is not responsible to pay compensation.

In the background of above said factual position, the evidence was led before the Claims Tribunal. The perusal of the record shows that respondent No.1 has entered into the witness box and reiterated as to how the accident was caused in the matter. She was cross-examined by the appellant- Insurance Company. In cross-examination, she has specifically stated that she is not knowing who is the owner of the motorcycle and whether same was owned by one Nasiroddin Imamoddin. She also stated that she cannot tell any reason as to how name of Nasiroddin Imamoddin was mentioned in the details of policy which was produced by Insurance Company or record and referred to respondent No.1 during her evidence before Claims Tribunal.

The Insurance Company did not enter into the witness box, nor examined any independent evidence to prove their defence. They solely relied upon their contents of the policy which was not disputed by anyone before the Tribunal. Hence, according to appellant, once Insurance policy was proved and exhibited, there was no need for them to enter into witness box.

In the background of factual position, the learned Tribunal has decided the claim petition and by relying upon the statement of the claimant that the accident was caused due to offending truck which was coming from opposite side and she caused injuries in the said accident. Relying on evidence of respondent No.1, learned Tribunal held responsible owner i.e. respondent No.3 and the present appellant- Insurance Company as jointly and severally responsible to pay the compensation.

The judgment of Claims Tribunal is under challenge by the appellant-Insurance Company, mainly on the ground that the policy involved in the matter was an ‘Act only policy’ and, therefore, according to them, pillion rider is not covered under the said policy. Appellant failed to implead the correct owner of the vehicle as a party respondent in the matter and, therefore, considering this fact, the order of the Claims Tribunal awarding compensation of Rs.75,000/- to the claimant, who was the pillion rider is not sustainable in the eyes of law. The appellant in support of his submission has a relied upon the judgment of the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. vs. Tilak Singh, (2006) ACC 1 (SC), the Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and others 2008 ACJ 2045.

In the present matter, no one appeared on behalf of respondent. I have no opportunity to consider the submission of the respondent in the matter. In the circumstances, on the basis of latest view taken by the Hon’ble Supreme Court was pointed out to the appellant that in such cases, the principle of pay and recover is to be made applicable in the matter and for that purpose vide order dated 28.11.2015 by referring the judgment of the Hon’ble Supreme Court, particularly in the case of Sunita versus United India insurance Co. Ltd. MANU/SC/0934/2025, Rama bhai vs. Amit Mittal 2025 online SC 2067 and Akula Narayana versus The Oriental Insurance Company Limited & Another reported in 2025 SCC Online Sc 2377 was brought to the notice of Counsel for the appellant.

In light of the submission and legal position, learned Counsel today advanced his argument on the legal issue. According to him, the Hon'ble Supreme Court in above referred cases applied the principle of the "pay and recover" by exercising powers under Article 142 of the Constitution of India, was right in doing so. But, in the present case, the vehicle involved in this accident is an "Act only policy." Therefore, the Insurance Company can only pay compensation to the owner of the vehicle and not directly to the other person. The appellant before the Claims Tribunal failed to implead the owner of the vehicle as a necessary party. In the circumstances, as the owner was not a party to the proceedings, the pay and recover order cannot be passed in the matter.

In light of submission of the respondent, I have again gone through case papers and pleadings as well as the cross-examination conducted by the appellant-Insurance Company in the matter. It is here pertinent to note that the appellant came with a case that respondent No.1 was the pillion rider of vehicle and not impleaded true owner as party respondent. Respondent No.1 states that she is not aware who is the owner of the vehicle. In the cross-examination also said fact is clear. She specifically stated that she does not know the person, namely Nasiroddin Imamoddin, whose name is shown in the details of the policy. But, respondent No.1 has impleaded appellant Insurance Company as a necessary party to the proceeding as vehicle was insured with appellant. Respondent No.1 relied upon the Insurance Policy to claim compensation in the matter. Appellant Insurance Company in their written statement specifically denied Respondent No.3 as an owner the vehicle. In such circumstances, it is least expected from respondent No.1 to take necessary steps to implead the real owner of the vehicle as a party respondent or at least should have clarify the fact as to why she did not implead the real owner as a necessary party to the proceeding. But unfortunately nothing is stated by respondent No.1 in her evidence nor learned Tribunal discussed the same in the impugned judgment.

Respondent No.3 who was driving the motor bike in such circumstances was expected to appear either before Tribunal or before this Court to clarify the factual position in the matter. But he has also not clarified the factual position as to how the vehicle came in his possession on the day of accident. As such, factual aspect is not clear in the matter.

Perusal of record shows, as per policy, one Nasiroddin Imamoddin is shown as the owner of vehicle. According to respondent No.1/claimant at the time of accident, respondent No.3 was driving the motor-bike. Respondent No.3 did not enter into witness box. Respondent No.1 in her deposition unable to clarify why Nasiroddin Imamoddin is not made party to claim petition. In the light of this factual position, I am of the opinion that respondent No.3 who was driving the vehicle either have borrowed the vehicle from owner or might have purchased from him but vehicle was not transferred in his name, in that view of the matter, it can safely say that, he has entered into the shooes of owner of vehicle. As such, he being tortfeasor, respondent No.1 who was pillion rider of the vehicle can not claim any compensation from appellant Insurance Company in the matter.

In the facts and circumstances of the case it will be relevant to refer the judgment of Hon’ble Supreme Court of India in the case of United India Insurance Co. Ltd. Shimla Vs. Tilak Singh and ors. II (2006) ACC 1 (SC), wherein in para 21, observed as under:

In view of above discussion, I am of the considered opinion that considering the peculiar facts and circumstances of the matter, appellant Insurance Company can not be held responsible in the matter.

Perusal of record shows that appellant Insurance Company has deposited amount under the award and thereby this Court by order dated 02.07.2012 confirmed the stay granted by this Court on 14.09.2010. The same is till date in operation. Respondent No.1 was though served, did not appear in the matter and no one came forward to withdraw the amount, as same is lying with the Registry of this Court.

In that view of the matter, I proceed to pass following order:

The First Appeal stands disposed of in above terms. No order as to the costs.