Smt. Somali Nayak and another v. Haldhar Netam and another) by the
Case Details
SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.1 of 5 IN MAC-868-2023 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:44057 NAFR
Legal Reasoning
MAC No. 868 of 2023 [Arising out of award dt. 21.04.2023, passed in Claim Case No.49 of 2020 (Smt. Somali Nayak and another v. Haldhar Netam and another) by the 1st Addl. Motor Accident Claims Tribunal, Bastar at Jagdalpur (CG)]
Legal Reasoning
1 - Smt. Somali Nayak W/o Late Bhav Singh Nayak Aged About 52 Years R/o Plotpara, Village Badekanera, Post Badekanera, Police Station Kondagaon, District : Kondagaon, Chhattisgarh 2 - Naduram Nayak S/o Late Bhav Singh Nayak Aged About 25 Years R/o Plotpara, Village Badekanera, Post Badekanera, Police Station Kondagaon, District : Kondagaon, Chhattisgarh ... Appellants Versus 1 - Haldhar Netam S/o Arjun Netam Aged About 22 Years R/o Kutgudapara, Village Badekanera, Post Badekanera, Police Station Kondagaon, District : Kondagaon, Chhattisgarh 2 - The Oriental Insurance Company Limited Through- Branch Manager, Branch Office, Hotel Laxman Avenue, Murti Line, Jadgalpur, District : Bastar(Jagdalpur), Chhattisgarh ... Respondents [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------------ For Appellant : Mr. PK Dhurandhar & Ms. Ranjana Tiwari, Advs. For Respondent No.1 : None though served. For Respondent No.2 : Mr. PK Tulsyan, Advocate ------------------------------------------------------------------------------------------------ Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal 29.08.2025 (Order on Board) 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for Page No.2 of 5 IN MAC-868-2023 short the “Act of 1988”) has been preferred by the appellant/claimant challenging the impugned award dt. 21.04.2023, passed in Claim Case No.49 of 2020 (Smt. Somali Nayak and another v. Haldhar Netam and another) by the 1st Addl. Motor Accident Claims Tribunal, Bastar at Jagdalpur (CG) [for short the “AMACT”], whereby though learned AMACT has awarded a total sum of Rs.11,36,442/- as compensation to the appellants/claimants, but failed to apply the principle of pay and recover by exonerating the insurance company to pay the said amount. 2. Learned counsel appearing for the appellants would submits that though the learned AMACT has clearly recorded a finding that the driver of the offending vehicle was not having valid and effective driving license at the time of accident and, on the basis of which, exonerating the insurance company from the liability to pay compensation, but miserably failed to apply the principle of pay and recovery, which unsustainable and bad in law. Hence, this appeal may be allowed. 3. On the other hand, learned counsel appearing for the respondent- Insurance company would support the impugned award and prays for dismissal of the appeal. 4. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the record with utmost circumspection. 5. A careful perusal of the record would show that in the present case the learned AMACT has awarded total sum of Rs.11,36,442/- as Page No.3 of 5 IN MAC-868-2023 compensation to the appellants/claimants on account of death of deceased- Bhav Singh Nayak and has also recorded a specific finding that the driver of the offending vehicle was not having valid and effective driving license at the time of accident and, on the basis of which, exonerating the insurance company from the liability to pay compensation and fastened the liability to pay compensation to the claimants on the respondent No.01. However, no direction with regard to pay and recovery has been passed. 6. In this regard, it would be appropriate to notice the decision of the Supreme Court in Shamanna and another v. Divisional Manager, Oriental Insurance Company Limited and others 1 whereby it has been held in Para-13 & 15 as under:
Decision
“13. Since the reference to the larger Bench in [National Insurance Co. Ltd. v. Parvathneni case Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, 1 (2018) 9 SCC 650 Page No.4 of 5 IN MAC-868-2023 (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that : (SCC p. 226, para 8) “8. … For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.” 15. In the result, the impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court insofar as enhancement of the compensation to Rs 4,94,700 is concerned is affirmed. Insofar as direction of the impugned judgment directing the appellant claimants to recover the compensation from the owner of the vehicle is concerned, is set aside and the appeal is partly allowed. The first respondent insurance company shall pay the enhanced compensation to the appellant claimants along with the accrued interest and the insurance company shall recover the same from the owner of the vehicle. No costs.” 7. Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of the Supreme Court it Page No.5 of 5 IN MAC-868-2023 would be expedient to direct the respondent No.02 – Insurance Company to firstly pay the entire amount of compensation along with interest to the claimants within 45 days from the date of receipt of a copy of this order and, thereafter, recover it from respondent No.1 herein. It is ordered accordingly. 8. With aforesaid direction and modification with regard to the order of pay and recover, this appeal stands finally disposed of. No cost. s@if Sd/- (Sanjay K. Agrawal) Judge