M/s. ICICI Lombard General Insurance Co. Ltd. v. Dhanalakshmi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17 .3.2009CORAM:-The Hon'ble Mr. Justice R. SUDHAKARC.M.A. Nos. 3030 to 3043 of 2007M/s. ICICI Lombard General Insurance Co. Ltd.,ICICI Bank Towers,Bandra Kurla Complex,Bandra (East) Mumbai 400 051... Appellant/2nd respondent (Appellant in all the appeals)Vs.1. Dhanalakshmi2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3030/2007)1. Bhuvaneswari2. R. Sakthivel .. Respondents/Petitioner/ 1st Respondent (In CMA No. 3031/2007)1.Sundari2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3032/2007)1. Ponnusamy2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3033/2007)1. Shanthi2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3034/2007)1.Kanniappan2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3035/2007)1. Kamatchi2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3036/2007) https://hcservices.ecourts.gov.in/hcservices/

1. Alamelu2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3037/2007)1. Shanthi2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3038/2007)1. Kalyani2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3039/2007)1. Gandhimathi2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3040/2007)1.Rajendran2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3041/2007)1. Kothandam2. Sri R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3042/2007)1. Amsa2. R. Sakthivel.. Respondents/Petitioner/ 1st Respondent (In CMA No. 3043/2007)Appeals filed under Section 173 of Motor Vehicle Actagainst the common award and decree dated 30.3.2007 in M.C.O.P.Nos.13 to 24, 28 and 29 of 2006 on the file of the Motor Accidents ClaimsTribunal (Subordinate Court) Maduranthagam. For Appellant : Mr. N. VijayaraghavanFor Respondents: No Appearance - R1 R2- ex-parte. COMMON JUDGMENTIn all these appeals, the contention raised by the learnedcounsel for the appellant is that the claimants are passengers inthe goods vehicle. 2. The insurance company has filed these appealschallenging the award of the Tribunal which by its order dated30.3.2007 in M.C.O.P.Nos. 13 to 24, 28 and 29 of 2006 directed theappellant insurance company to pay and recover the award amount fromthe owner of the vehicle. https://hcservices.ecourts.gov.in/hcservices/

3. In all these cases, the accident happened on25.12.2005. Several persons travelled in a lorry which capsized. Inthat accident, they suffered injuries and filed claims forcompensation. Even in the claim petitions, they have admitted thatthey travelled in the vehicle bearing registration No. TN10J 5991which is a goods vehicle. 4. The Tribunal, in all these cases, after determining thecompensation, placing reliance upon the decision reported in OrientalInsurance Company Limited, Chennai – Vs. - Dhanapakkiam ( 2007) (1)M.L.J. 65) directed the appellant to pay and recover the same fromthe owner of the vehicle. 5. In these appeals, appellant contended that when theadmitted case of the claimants is that they have travelled asgratuitous passengers in the goods vehicle and the finding of theTribunal is also the same, the question of pay and recover does notarise when there is a breach of condition of policy. 6. In all the appeals, notice of admission was ordered on7.12.2007 and the first respondent in all the appeals was served on24.12.2007. Since the second respondent herein, the first respondentbefore the Tribunal, in all the cases remained ex parte before theTribunal, an endorsement is made in all the appeal grounds statingthat notice to second respondent may be dispensed with. Hence,notice to second respondent in all the cases is dispensed with byorder dated 18.2.2009. On behalf of the first respondent, no vakalathas been filed till date. When these matters were listed on3.2.2009, there was no representation on behalf of the firstrespondent in each case. Hence, this matter was adjourned to12.2.2009. On 12.2.2009 also, there was no representation on behalfof the first respondent. The matter was adjourned to 17.2.2009. On17.2.2009 also there was no representation on behalf of the firstrespondent. Thereafter, the cases were adjourned and listed on18.2.2009, 26.2.2009, 27.2.2009, 3.3.2009, 6.3.2009 and 16.3.2009.As a last chance, these matters are listed today. Today also thereis no representation on behalf of the respondent claimants. Thefacts are not in dispute. The injured claimants are gratuitouspassengers in a goods vehicle. The law is also settled as set outhereunder. Therefore, the appeals are taken up for disposal onmerits. 7. In a case of this nature, the issue relating to pay andrecover has been considered by Courts and Tribunal from time to timeand applied depending on facts and circumstances of the case. A FullBench reference was made in view of the doubts raised with regard tothe applicability of the above principle pursuant to the DivisionBench decision of this Court in United India Insurance CompanyLimited, Tiruvannamalai and another – vs. - Selvam and others [2006(1) MLJ 154]. The question framed by the Full Bench in Branch https://hcservices.ecourts.gov.in/hcservices/ Manager, United India Insurance Co. Ltd., - vs. - Nagammal reportedin 2009(1) CTC 1 = 2009(1) L.W. 702, is as follows:-"The precise question to be answered iswhether the Insurer can be directed to paycompensation to the claimant in a case where thedeceased and/or the injured was travelling as agratuitous passenger in a goods vehicle andrecover the same thereafter from the owner ofsuch goods vehicle."8. The Full Bench of this Court answered the reference inparagraph 31 of the judgment as follows:-"31. Thus from an analysis of the statutory provisionsas explained by the Supreme Court in various decisionsrendered from time to time, the following picture emerges:"(i) The Insurance Policy is required tocover the liability envisaged under Section 147,but wider risk can always be undertaken.(ii) Section 149 envisages the defenceswhich are open to the Insurance Company. Wherethe Insurance Company is not successful in itsdefence, obviously it is required to satisfy thedecree and the award. Where it is successful inits defence, it may yet be required to pay theamount to the claimant and thereafter recover thesame from the owner under such circumstanceenvisaged and enumerated in Section 149(4) andSection 149(5).(iii) Under Section 147 the InsuranceCompany is not statutorily required to cover theliability in respect of a passenger in a goodsvehicle unless such passenger is the owner oragent of the owner of the goods accompanying suchgoods in the concerned goods vehicle. (iv) Since there is no statutory requirementto cover the liability in respect of a passengerin a goods vehicle, the principle of "pay andrecover", as statutorily recognised in Section149(4) and Section 149(5), is not applicable ipsofacto to such cases and, therefore, ordinarilythe Court is not expected to issue such adirection to the Insurance Company to pay to theclaimant and thereafter recover from the owner. https://hcservices.ecourts.gov.in/hcservices/ (v) Where, by relying upon the decision ofthe Supreme Court in Satpal Singh's case, eitherexpressly or even by implication, there has beena direction by the Trial Court to the InsuranceCompany to pay, the Appellate Court is obviouslyrequired to consider as to whether such directionshould be set aside in its entirety and theliability should be fastened only on the driverand the owner or whether the Insurance Companyshould be directed to comply with the directionregarding payment to the claimant and recoverthereafter from the owner. (vi) No such direction can be issued by anyTrial Court to the Insurance Company to pay andrecover relating to liability in respect of apassenger travelling in a goods vehicle after thedecision in Baljit Kaur's case merely because thedate of accident was before such decision. Thedate of accident is immaterial. Since the lawhas been specifically clarified, no Trial Courtis expected to decide contrary to such decision. (vii) Where, however, the matter has alreadybeen decided by the Trial Court before thedecision in Baljit Kaur's case, it would be inthe discretion of the Appellate Court, dependingupon the facts and circumstances of the case,whether the doctrine of "pay and recover" shouldbe applied or as to whether the claimant would beleft to recover the amount from the person liablei.e., the driver or the owner, as the case maybe."9. There is no dispute in this case that the injured personswere travelling in a goods vehicle as gratuitous passengers and theywere not entitled to do so. Further, the policy of insurance issuedin respect of the vehicle does not cover the case of claim by theinjured passengers, who travelled in a goods vehicle. In view ofthe decision of the Supreme Court referred to by the Full Bench ofthis court, which held that the decision of the Division Bench ofthis Court in Selvam's Case (cited supra) has not laid down thecorrect law,the order of the Tribunal directing the appellantinsurance company to pay the compensation to the claimants andrecover the same from the owner of the goods vehicle does not arisein this case. The appellant insurance company is under no liabilityto pay the claimants. The order of the Tribunal directing theappellant insurance company to pay the claimants and recover the samefrom the owner of the vehicle cannot therefore, be sustained in law. https://hcservices.ecourts.gov.in/hcservices/

10. With regard to quantum of compensation including interestgranted by the Tribunal, there is no dispute and the same isconfirmed.11. In the result, all the Civil Miscellaneous Appeals areallowed as follows:-(i) The order of the Tribunal directing the appellant insurancecompany to pay the compensation to claimant in all the appeals andrecover the same from the owner of the vehicle, is set aside.(ii) Since there is no dispute with regard to quantum ofcompensation, the same is confirmed. (iii) The claimant in all the appeals are entitled to recoverthe award amount as ordered by the Tribunal from the owner of thevehicle in accordance with law.(iv) The appellant insurance company is entitled to seekrefund of the amount already deposited with accrued interest if any,pursuant to the order of this court. (v) There will be no order as to costs.(vi) Consequently, connected miscellaneous petition in all theappeals are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ra/tsToThe Motor Accidents Claims Tribunal, (Subordinate Court) Maduranthagam. CMA Nos.3030 to 3043/2007BV(CO)EM/25.3.09