Afr High Court
Case Details
Page 1 of 6 (MAC No.1096/2022) SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.08.15 10:24:16 +0530 2025:CGHC:40579 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1096 of 2022 Branch Manager, Chola Mandalam M.S. General Insurance Company Limited, Branch Rajnandgaon, District Rajnandgaon, Chhattisgarh. (Insurer) ... Appellant versus
Legal Reasoning
1. Smt. Maina Bai, W/o Late Shri Ramadhin, aged 42 years 2. Mukesh Kumar, S/o Late Shri Ramadhin, aged 23 years 3. Narayan, S/o Late Shri Ramadhin, aged 19 years 4. Ku. Lata, D/o Late Shri Ramadhin, aged 21 years All above Respondents Caste Kalar. All R/o Village Navagoan, P.S. Manpur, District Rajnandgaon, Chhattisgarh. (Claimants) 5. Akturam Kesariya, S/o Late Baliram Kesariya, Aged 32 years, R/o Village Kumhartola, P.S. Manpur, District Rajnandgaon, Chhattisgarh. Driver (Vehicle No.CG08 V8287) 6. Govind Ram Mandavi, S/o Charan Singh Mandavi, Aged 41 years, Caste Gond, R/o Village Navagaon, P.S. Manpur, District Rajnandgaon, Chhattisgarh. Owner (Vehicle No.CG08 V8287) ... Respondents For Appellants : Mr. Ghanshyam Patel, Advocate. For Respondents No.5 & 6 : Mr. Rajendra Patel, Advocate on behalf of Mr. S.S. Baghel, Advocate. Page 2 of 6 (MAC No.1096/2022) Single Bench:- Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 12/08/2025 1. The appellant Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 calling in question legality, validity and correctness of the impugned award dated 18-1- 2022 passed by the 1st Additional Motor Accident Claims Tribunal, Rajnandgaon in Claim Case No.183/2016, by which liability to pay a total compensation of ₹ 11,04,634/- has been fastened upon the Insurance Company. 2. It is the case of the appellant Insurance Company that the deceased was travelling in the goods vehicle which was insured for goods and the deceased was a gratuitous passenger, therefore, the Insurance Company is not responsible, which the Claims Tribunal has rejected and fastened liability upon the Insurance Company against which the present appeal has been preferred. 3. Mr. Ghanshyam Patel, learned counsel appearing for the appellant herein/Insurance Company, would submit that the Claims Tribunal is absolutely unjustified in fastening liability upon the Insurance Company, as the deceased was admittedly, travelling in the goods vehicle and as per the insurance policy Ex.D-1, only driver was covered and third party was also covered, however, the deceased was not covered which has also been proved by Mitesh Kumar (NAW-1), Assistant Law Officer, Chola Mandalam M.S. General Page 3 of 6 (MAC No.1096/2022) Insurance Company Limited, who has clearly stated that only driver and their goods were insured and other than driver and third party was not insured. He would further submit that the deceased was the person sitting as gratuitous passenger in the said goods vehicle, as such, the Insurance Company is not responsible. Therefore, the impugned award is liable to be set aside and the appeal deserves to be allowed. 4. On the other hand, Mr. Rajendra Patel, learned counsel appearing on behalf of respondents No.5 & 6, would oppose the appeal and support the impugned award. 5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 6. Admittedly, the deceased was travelling in the goods vehicle and as per the insurance policy Ex.D-1, third party + owner / driver both were covered and no cleaner or other person was covered in the insurance policy which has been affirmed by Mitesh Kumar (NAW- 1), Assistant Law Officer of the appellant Insurance Company, who has clearly stated that the insurance policy only covers driver and third party for whom the insurance was taken and no other person was covered. In that view of the matter, the Insurance Company is not responsible for the death of the deceased. 7. Now, the question is, whether the principle of pay and recover would apply? Page 4 of 6 (MAC No.1096/2022) 8. In this regard, the decision of the Supreme Court in the matter of Anu Bhanvara and others v. Iffco Tokio General Insurance Company Limited and others1 is required to be noticed herein profitably in which the Supreme Court in case of gratuitous passengers in a goods vehicle duly insured has dealt with the question whether payment of compensation is to be made jointly by owner and driver of vehicle, or by insurer, which could thereafter be recovered by insurer from owner and driver, and it has been held as under: - “9. The next question is as to which of the respondents, that is, the owner and driver, or the insurer of the vehicle, would be liable for payment of such compensation. As regard the liability for payment of compensation, it has been contended by the learned counsel for the appellants that since the vehicle was admittedly insured with Respondent 1 insurance company, the principle of pay and recover would be invoked even in case of a gratuitous passenger in a goods vehicle. The insurance company should thus be made liable for the payment of compensation to the appellants and in turn they would have the right to realise/recover the same from the owner and driver of the vehicle. In support of his submission, the learned counsel for the appellants has relied on the following decisions of this Court, namely, Manuara Khatun v. Rajesh Kumar Singh2, Puttappa v. Rama Naik3; National Insurance Co. Ltd. v. Saju P. Paul4; New India Assurance Co. Ltd. v. Vimal Devi5; National Insurance Co. Ltd. v. Challa Upendra Rao6; New India Assurance Co. Ltd. v. C.M. Jaya7 and Amrit Lal Sood v. Kaushalya Devi Thapar8. (2020) 20 SCC 632 1 2 (2017) 4 SCC 796 : (2017) 2 SCC (Civ) 710 : (2017) 2 SCC (Cri) 492 3 2018 SCC OnLine SC 3496 4 (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399 5 2010 SCC OnLine SC 49 6 (2004) 8 SCC 517 : 2005 SCC (Cri) 357 7 (2002) 2 SCC 278 : 2002 SCC (Cri) 325 8 (1998) 3 SCC 744 Page 5 of 6 (MAC No.1096/2022) 10. Per contra, the learned counsel for the respondent insurance company has contended that since the claimants were gratuitous passengers in a goods vehicle, in which case the liability for payment of compensation for death or bodily injury to the passengers of such goods vehicle would not be covered, hence the principle of pay and recover would not apply. It has thus been contended that the order of the High Court is perfectly justified in law and calls for no interference by this Court. In support of her submission, the learned counsel has relied on following decisions, namely, New India Assurance Co. Ltd. v. Asha Rani9; National Insurance Co. Baljit Kaur10; National Insurance Co. Ltd. v. Ltd. v. Kaushalaya Devi11; National Insurance Co. Ltd. v. Rattani12; National Insurance Co. Ltd. v. Prema Devi13; Bharati AXA General Insurance Co. Ltd. v. Aandi14 and Bajaj Allianz General Insurance Co. Ltd. v. Lal Singh15. 11. We have heard the learned counsel for the parties and perused the record as well as the various decisions cited by the learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of “pay and recover” should be directed to be invoked in the present case.” 9. Coming to the facts of the present case, the Supreme Court in Anu Bhanvara (supra) has clearly held that the principle of “pay and recover” is required to be invoked in case of gratuitous passengers also in a goods vehicle. 10.In that view of the matter, the appeal is partly allowed. The appellant Insurance Company is made liable to pay the awarded compensation to the claimants, however, it shall have the right to 9 (2003) 2 SCC 223 : 2003 SCC (Cri) 493 10 (2004) 2 SCC 1 : 2004 SCC (Cri) 370 11 (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467 12 (2009) 2 SCC 75 : (2009) 1 SCC (Civ) 398 : (2009) 1 SCC (Cri) 669 13 (2008) 5 SCC 403 : (2008) 2 SCC (Cri) 627 14 2018 SCC OnLine Mad 13295 : 2019 ACJ 1975 15 2015 SCC OnLine Del 7508 Page 6 of 6 (MAC No.1096/2022) realise the said amount of compensation from respondents No.5 & 6, driver & owner, respectively, in accordance with law. In conclusion, the appellant Insurance Company is directed to pay/ disburse the awarded compensation to the claimants first and recover the same from driver & owner 50% each.
Decision
11. There shall be no order as to costs. Soma Sd/- (Sanjay K. Agrawal) Judge