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Judgment
D. Hari Paranthaman, J—The first respondent in the appeal is the claimant in MCOP No. 79 of 2011 on the file of the Subordinate Judge, Motor Accidents Claims Tribunal, Padmanabhapuram. While he was riding a two-wheeler, the two-wheeler involved in an accident with a lorry. The two-wheeler was insured with the appellant Insurance Company. But the lorry was not insured and the owners of the lorry are respondents 2 and 4. The owners of the two-wheeler are respondents 3 and 5.
The Tribunal passed the judgment and decree dated 25.03.2012 in MCOP No. 79 of 2011 granting compensation of Rs. 20,03,590/- and apportioned the blame on the owners of the two-wheeler and the owners of the lorry equally, and the appellant Insurance Company was directed to indemnify the liability on behalf of the owners of the two-wheeler.
The lorry owners are the respondents 2 and 4 and they have not complied with the award and they have also not chosen to file an appeal and the amount is yet to be realised. While so, the appellant Insurance Company questioned their liability on the ground that the two-wheeler was issued only with Act Policy and there was no package policy and hence no liability shall be fastened on the Insurance Company.
The learned counsel for the first respondent/claimant has objected to the submissions made by the learned counsel for the appellant Insurance Company. In any event, it is submitted that even in the case of gratuitous passengers wherein no liability could be fastened on the Insurance Company, the Apex Court has directed pay and recovery and hence the appellant could pay the compensation to the first respondent and the same could be recovered from the respondents 3 and 5 who are the owners of the two-wheeler.
I have considered the submissions made on either side.
The first respondent/claimant is aged 20 years and his entire right knee was amputated. The lorry was not insured and the lorry owner is yet to satisfy the award. He has also not chosen to file appeal. It is not known as to whether recovery could be made against the lorry owner.
As rightly contended by the learned counsel for the first respondent, the Apex Court has held that the Insurance Company is not liable to pay compensation to the gratuitous passengers, but the Insurance Company shall pay at the first instance to the claimant and then recover from the owner of the vehicle. The following judgments of the Apex Court are relevant:
(1) Manager, National Insurance Company Ltd. Vs. Saju P. Paul and Another, (2013) 1 ACC 46 : (2013) ACJ 554 : (2013) 3 AD 604 : AIR 2013 SC 1064 : (2013) 1 JT 255 : (2013) 1 RCR(Civil) 869 : (2013) 1 SCALE 66 : (2013) 2 SCC 41 : (2013) 1 SCC(L&S) 399 : (2013) AIRSCW 609 : (2013) 1 Supreme 108 and
(2) National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, (2007) 2 ACC 28 : (2007) ACJ 721 : AIR 2007 SC 1414 : (2007) 136 CompCas 678 : (2007) 4 JT 169 : (2007) 146 PLR 510 : (2007) 4 SCALE 36 : (2007) 3 SCC 700 : (2007) 3 SCR 579 : (2007) AIRSCW 1782 : (2007) 2 Supreme 800 .
In my view, the view taken in the above judgments can be applied in the present case. Pursuant to the order of this Court, the amount that is fastened on the Insurance Company was deposited. Hence the first respondent claimant is permitted to withdraw the same and the same shall be recovered by the Insurance Company, from the third and fifth respondents who are the owners of the two-wheeler.
The Civil Miscellaneous Appeal is disposed of accordingly. Consequently, the connected miscellaneous petitions are closed. No costs.