The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.552 of 2009 (In the matter of an appeal under Section 173 of the Motor Vehicles Act, 1988) The Divisional Manager, the New India Assurance Co. Ltd., Divisional Office-I, Road, Badambadi, Cuttack Kathajodi -versus- …. Appellant Lambodar Jhodiya and others …. Respondents Appeared in this case:- For Appellant For Respondents : :
Legal Reasoning
Mr. N.K. Mohanty, Advocate Mr. P.K. Behera, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 25.09.2024 / date of judgment :30.09.2024 A.C. Behera, J. This appeal under Section 173 of the Motor Vehicles Act, 1988 (in short ‘the M.V. Act, 1988’) preferred by the appellant(Insurance Company) challenging an award passed by the learned Additional District Judge-cum-3rd MACT, Rayagada in MAC No.20 of 2006 for pay and recover in a motor vehicular accidental death claim case vide MAC No.20 of 2006 on two grounds, i.e., (i) an extra premium was not paid for the Trolley(Trailor) of the offending Tractor for carrying the labourers, in which, the deceased was moving as a labourer at the time of accident and (ii) the driver of that offending Tractor had no valid driving license to // 2 // drive the same has been taken up into consideration for its final disposal at the stage of admission after hearing from the learned counsels of both the sides. 2. It is the settled propositions of law that, once an Insurance Company has undertaken the liability of the third party in a motor vehicular accident caused by the use of an offending insured vehicle, in that case, the right of the third party to get the compensation amount from the insurer of the offending vehicle, i.e., from the Insurance Company is not affected by any of the conditions of the insurance policy of the offending vehicle, even though, there is any violation of the insurance policy condition of the offending vehicle either on account of disqualification of the driver of the offending vehicle to drive the same or in otherwise. In such contingency, the Insurance Company(insurer) shall indemnify the awarded compensation amount first in favour of the third party and then, the Insurance Company may recover the said paid compensation amount from the insured owner of the offending vehicle, who had breached/violated the insurance policy condition. 3. It is also the settled propositions of law that, when a Tractor is fitted with its trolley(Trailor) and the said trolley is for carrying goods, then, as per under Section 147(1) of the M.V. Act, 1988, no extra premium is required to be paid to cover the liability of the labourers of Page 2 of 5 // 3 // the Tractor for carrying them through that trolley fitted with the insured Tractor. 4. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) (ii) 2008(4) TAC-511(Panjab & Haryana) : Govind Ram vrs. Umed Singh—Once company had undertaken the liability to third party, the third parties right to recover and amount under or by virtue of provisions of the Act was not affected by condition of that policy. (2018) 72 OCR (S.C.)-138 : Shamanna and Another vrs. The Divisional Manager The Oriental Insurnce Co. Ltd. and Ors.—Accident Claim—Breach of insurance policy condition due to disqualifications of the driver or invalid driving license of the driver—In case of third party risks, the insurer has to indemnify the compensation amount to the third party and insurance company may recover the same from the insured. (iii) AIR 2001(S.C.)-1419 : New India Assurance Co., Shimla vrs. Kanku and others—Breach of policy conditions of the Insurance Policy on account of vehicle being driven without valid driving Licence— Insurer made statutorily liable to pay compensation to third parties can recover from insured vehicle owner amount paid to third parties—The poor applicants should not suffer. So, inconsonance with provisions of Section 149, this Court directs that, the Insurance Company first deposit the entire amount before the learned Tribunal, then, to realize the said amount from the owner of the offending vehicle inconsonance with law. (iv) (v) 2018(2) CCC -467(S.C.) : Mangla Ram vrs. Oriental Insurance Co. Ltd.—Even if insurance company is not held liable, principle of ‘pay and recover’ can be involved. 2014(I) TAC-311(Orissa) : Branch Manager Bajaj Allianz General Insurance Co. Ltd. vrs. Kumari Page 3 of 5 // 4 // Podha and others—Tractor fitted with Trolley is a goods carriage as per Section 147(1) , no extra- premium is required to be paid to cover the liability of such a labourer. (vi) : The Divisional Manager 2009(II) OLR-982 Oriental Insurance vrs. Manik Munda and two others—Section 147(1)—A tractor fitted with trolley is a goods carriage, as per section, no extra premium is required to be paid to cover the liability of such a labourer carried in a goods vehicle. 5. Here, in this appeal at hand, when, on 12.03.2006, the mother of the petitioners, i.e., Sita Jhodiya was moving as a labourer of the offending Tractor bearing Registration No.OR-18-A-1979 on its Trolley bearing Registration No.OR-18-A-1980, the said Tractor met with an accident and by the result of such accident, the deceased mother of the petitioners expired and when the appellant (Insurance Company, i.e., insurer of the offending Tractor) has taken the above two pleas challenging the impugned award passed against it for exoneration of its liability and when the learned Tribunal has passed the impugned award in MAC No.20 of 2006 directing the Insurance Company (appellant) to pay awarded compensation amount to the claimants(petitioners) thereof first and then to realize (recover) the same from its owner, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court, it cannot be held that, the impugned award and directions made by the learned Tribunal to pay and recover cannot be held as erroneous in any manner. Page 4 of 5 // 5 // For which, the question of making any interference with the same through this appeal preferred by the appellant (Insurance Company) does not arise. Therefore, there is no merit in the appeal of the appellant- Insurance Company . The same must fail. 6. In result, the appeal filed by the appellant (Insurance Company) is dismissed on contest. Registry is directed to send back the LCRs of this appeal forthwith for payment of the awarded compensation amount with interest thereon to the claimants on deposit of the awarded compensation amount with interest thereon by the appellant-Insurance Company as directed by the learned Additional District Judge-cum-3rd MACT, Rayagada in MAC No.20 of 2006 within a month hence. The statutory deposited amount made by the appellant (Insurance Company) before the Hon’ble Courts in this appeal shall be refunded to the appellant (Insurance Company) on production of receipt regarding the deposit of the awarded compensation amount before the learned Tribunal in MAC No.20 of 2006. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: ohc, cuttack Date: 30-Sep-2024 16:05:39 Judge Orissa High Court, Cuttack The 30th of September, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Page 5 of 5