1. The Oriental Insurance Company Ltd. through Branch Manager 1st Floor Rama Trade Center v. 1. Shatruhan Gadewal S/o Late Agahan Gadewal Aged About 50 Years R/o Village Dhurkot
Case Details
SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 1 2025:CGHC:41669 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 2400 of 2024 1. The Oriental Insurance Company Ltd. through Branch Manager 1st Floor Rama Trade Center Infront of Rajiv Plaza Old Bus Stand Road Bilaspur Tahsil & District - Bilaspur (C.G.) Insurer of Vehicle Activa No.CG13-AK-8861(NA No. 3 ) ... Appellant versus 1. Shatruhan Gadewal S/o Late Agahan Gadewal Aged About 50 Years R/o Village Dhurkot P.S. And Tahsil Janjgir District - Janjgir - Champa Present Address Behind Police Station Masturi P.S. And Tahsil Masturi District - Bilaspur (C.G.) (Claimants) 2. Ku. Rashmi Gadewal D/o Shatruhan Gadewal Aged About 18 Years R/o Village Dhurkot P.S. And Tahsil Janjgir District - Janjgir - Champa Present Address Behind Police Station Masturi P.S. And Tahsil Masturi District - Bilaspur (C.G.) 3. Rakesh Kumar Gadewal S/o Shatruhan Gadewal Aged About 22 Years R/o Village Dhurkot P.S. And Tahsil Janjgir District - Janjgir - Champa Present Address Behind Police Station Masturi P.S. And Tahsil Masturi District - Bilaspur (C.G.) 4. Ravi Kumar S/o Shatruhan Gadewal Aged About 27 Years R/o Village Dhurkot P.S. And Tahsil Janjgir District - Janjgir - Champa Present Address Behind Police Station Masturi P.S. And Tahsil Masturi District - Bilaspur (C.G.) 2 5. Sant Kumar Khandekar @ Monu S/o Hariram Khankekar Aged About 31 Years R/o Devgaon P.S. And Tahsil Masturi Bilaspur (C.G.) Driver And Owner Of Motorcycle No. Cg- 10bb- 7988 (N.A. No, 1) 6. Rahul Gadewal S/o Shatruhan Gadewal Aged About 25 Years R/o H.No. 173/2 Kokditarai Azad Chowk Raigarh (C.G.) - Owner Of Vehicle Activa No. Cg- 13ak- 8861 (N.A. No. 2 ) ... Respondent(s) For Appellant
Legal Reasoning
: Mr. H.P. Agrawal, Advocate For Respondent No.1 to 4 : Mr. Vipin Singh Thakur, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 18/8/2025 1. Appellant Insurance Company has filed this appeal challenging the award dated 27.8.2024 passed in Claim Case No.1186/2021 by which learned 2nd Additional Motor Accident Claims Tribunal, Bilaspur while allowing claim application of claimants and awarding compensation of Rs.17,40,000/- against death of Neera Gadhewal, wife and mother of claimants respectively, in a road accident dated 6.2.2021 occurred on account of rash and negligent driving of motorcycle bearing registration No.CG10-BB-7988 (for short ‘offending two wheeler’) by its driver i.e. non-applicant No.1, directed appellant Insurance Company, insurer of Activa Moped, to first pay entire amount of compensation awarded to claimants and then to recover the same from non-applicant No.1-owner of motorcycle. 3 2. Learned counsel for appellant-Insurance Company would argue that the Claims Tribunal fell into error in issuing direction to appellant Insurance Company to first satisfy entire amount of compensation and thereafter to recover the same from non-applicant No.1driver-cum-owner of motorcycle. He contended that appellant is not the insurer of Activa moped owned by non-applicant No.2 and not of offending motorcycle. Claims Tribunal while deciding Issue No.1 has recorded finding about joint negligence of drivers of both vehicles is not proved; accident was a result of rash and negligent driving of motorcycle by non-applicant No.1. However, only considering the fact that on the date of accident motorcycle was not insured, directed appellant Insurance Company, insurer of other two wheeler involved in accident, to first satisfy the amount of compensation and thereafter to recover the same from non-applicant No.1, which is per se illegal and not sustainable. He next contended that Claims Tribunal erred in deducting one-fourth in stead of one-third towards personal expenses of deceased ignoring the fact that claimants No.3 and 4 are major sons. 3. Learned counsel for respondent-claimants opposing the submissions of learned counsel for appellant Insurance Company would submit that Claims Tribunal upon appreciating entire evidence available on record passed the 4 award which does not call for any interference. 4. At this stage, learned counsel for appellant Insurance Company submits that pursuant to interim order passed by this Court, appellant Insurance Company has already deposited 50% of the amount of compensation so awarded by the Claims Tribunal, therefore, if this Court allows the appeal, liberty be granted to recover said amount from non-applicant No.1. 5. Heard learned counsel for respective parties and perused record. 6. This appeal has been filed by appellant Insurance Company on the ground that once the Claims Tribunal had come to the conclusion that the offending vehicle was not insured with the Insurance Company, no direction could have been issued to the Insurance Company to pay the compensation to the claimants and then recover the same from the owner of the offending vehicle. 7. Perusal of impugned award would show that Issue No.1B framed by Claims Tribunal is with respect to contributory negligence and the same was answered in negative. Thus, it is clear that present is not the case of contributory negligence. It was the driver of offending two wheeler who was solely responsible for the accident in question. However, learned Claims Tribunal while considering the question of liability has 5 observed in Para-34 of impugned award that though non- applicant No.1 is liable for payment of compensation, but since offending motorcycle is not insured, whereas Activa Moped of deceased was insured with appellant-Insurance Company herein, therefore, relying on decision of this Court in MAC No.950/2013, decided on 19.12.2019, directed appellant Insurance Company to first pay entire amount of compensation to claimants and then recover the same from non-applicant No.1-owner of offending motorcycle. 8. In case of Oriental Insurance Co. Ltd. vs. Sunita Rathi and others, reported in AIR 1988 SC 257, where insurance policy in favour of offending vehicle therein was issued but subsequent to some time of the accident and in such circumstance, it was held by Hon'ble Supreme Court that when insurance policy and cover note was obtained by insured subsequent to accident even though on the same date, the liability will have to be of the owner of vehicle. Relevant portion of said judgment reads thus;- “It follows that the insurer cannot be held liable on the basis of the above policy in the present case and, therefore, the liability has to be of the owner of the vehicle. However, we find that the High Court, without assigning any reason, has simply assumed that the owner of the vehicle was not liable and that the insurer alone was liable in the present case. This conclusion, reached by the High Court, is clearly erroneous. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of 6 insurance. There is, thus, a basic fallacy in the conclusion reached by the High Court on this point.” 9. In First Appeal No.4447/2016, parties being Bharti Axa General Insurance Co. Ltd. vs. Gayabai Devrao Weldode and others, the Bombay High Court, after holding that the policy relied upon by owner of the vehicle was fake, refused to direct the Insurance Company to ''pay and recover'. Paragraphs 12 and 13 of the said report are extracted below: "12. Thus, obviously on the date of accident the offending jeep was not insured with the appellant/Insurance Company. On 01.05.2013 there was no contract of insurance in between the Insurance Company and the owner of offending vehicle. It follows that the Insurance Company is not liable to indemnify the owner of offending vehicle for the accident which occurred on 01.05.2013. In the circumstances, considering the date of payment of premium on 09.05.2013 (Exh. 43), I have no hesitation to hold that copy of insurance policy filed by the claimants at Exh. 29 is certainly a fake and tampered policy of insurance. Therefore, the appellant/Insurance Company is not at all liable to pay the compensation to the claimants. As this is not the case of breach of condition of policy, but the case of absence of contract of insurance of the offending vehicle on the date of accident, even the 'pay and recover' order cannot be passed against the Insurance Company. Both the cases relied on by the original claimants are distinguishable on facts.
Decision
13. In the result, I hold that the appellant/Insurance Company deserves to be exonerated in toto and no direction can be issued against the Insurance 7 Company to pay compensation amount to the claimants and later on recover it from the owner of offending vehicle. Accordingly, I answer point Nos. 1 and 2 in negative." 10. In case of National Insurance Co. Ltd. vs. Parvathneni and others, reported in (2009) 8 SCC 785, there was a situation of no insurance coverage for the vehicle on the date of the accident and in such a situation, Hon’ble Supreme Court while referring the matter to a larger Bench to decide the questions of law framed by it, observed thus:- ”3. Prima facie, we are of the opinion if the Insurance Company proves that it has no liability to pay compensation to the claimants, the Insurance Company cannot be compelled to make payment and later on recover it from the owner of the vehicle. 4. No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle…….. We have some reservations about the correctness of the aforesaid decisions of this Court. 5. If the insurance company has no liability to pay at all, then, in our opinion, it can not be compelled by order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. 6. When a person has no liability to pay at all how 8 can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.” 11. In case of The United India Insurance Co. Ltd. vs. Andhra Pradesh State Road Transport Corporation and others, reported in MANU/AP/352/2022, it was observed thus:- “14.The question referred by the Hon'ble Supreme Court is kept open by the Larger Bench vide its order dated 17.09.2013 in the petition for Special Leave to Appeal (Civil) No.22444 of 2009 (The National Insurance Co. Ltd. vs. Parvathneni), Hon'ble the three judges bench disposed of the petition saying that the question of law raised in this petition is kept open to be decided in an appropriate case. 20. In view of the above judgment, in the circumstances of the present case, there was no contract of insurance coverage existing between appellant-Insurance Company and the owner of the offending vehicle at the relevant date when the accident occurred. Therefore, the insurer cannot be held liable, in the absence of insurance policy. As such, the learned Tribunal had committed an error, in issuing direction to the appellant-Insurance Company in the impugned award under appeal, by fixing the joint and several liability against the appellant along with driver and owner of the offending vehicle to pay all the compensation awarded.” 12. In view of above decisions as also categoric finding of learned Claims Tribunal itself that there was no contract of insurance 9 coverage existing between appellant Insurance Company and owner of offending two wheeler on the date when accident in question occurred, there was no occasion for the Claims Tribunal to direct appellant insurance company to first pay entire amount of compensation to claimants and then to recover the same from non-applicant No.1-owner of offending two wheeler. In absence of any contract of insurance coverage between appellant Insurance Company and non-applicant No.1-owner of offending vehicle, the Claims Tribunal had committed an error, in issuing direction to appellant/Insurance Company by impugned award to first pay compensation awarded and then to recover from owner of offending two wheeler. 13. As far as decision rendered in MAC No.950/2013, the Claims Tribunal fell in error in placing reliance upon said decision. In that case exoneration of insurance company from its liability was questioned by claimants, which was allowed on the ground that insurance company of offending vehicle failed to establish that the driver of the offending vehicle was driving rashly and negligently or was not having valid driving license. It was not the point for consideration before the Court whether in absence of contract of insurance between owner of offending vehicle and insurance company at the time when accident occurred, direction of pay and recover can be issued against insurance company. 14. In the case at hand, appeal is filed by Insurance Company of 10 other two-wheeler, challenging the direction of pay and recover. Learned Claims Tribunal has held that accident was a result of rash and negligence driving of motorcycle by non-applicant No.1, and held non-applicant No.1 liable to pay the amount of compensation. This finding is not challenged by non-applicant No.1 or the claimants. In the above facts of the case where the appellant Insurance Company is not the insurer of the offending vehicle driven by non-applicant No.1, no direction of pay and recover, as issued by learned Claims Tribunal, can be issued. 15. Accordingly, the appeal filed by appellant Insurance Company is allowed and direction of pay & recover issued by learned Claims Tribunal against appellant Insurance Company is hereby set aside and it is held that liability to pay compensation is of non- applicant No.1/respondent No.5 herein. 16. Appellant Insurance company will be at liberty to recover from non-applicant No.1/respondent No.5 herein the amount so deposited by it in compliance of interim order dated 31.1.2025 passed by this Court, in accordance with law after payment of balance amount of compensation to claimant by non-applicant No.1/respondent No.5. 17. The impugned award is modified to the extent indicated above. roshan/- Sd/- (Parth Prateem Sahu) Judge