Jaghina Tehsil and District Bharatpur v. Middleton Street Calcutta through Manger National Insurance

: Mr. Harshit Nehra & Mr. Shantanu for Mr. Bipin Gupta : Mr. Vaibhav Jhankra for Mr. Tej Prakash Sharma HON'BLE MR. JUSTICE MANEESH SHARMA Order 11/07/2025

1. The present appeal has been filed on behalf of the non- claimants/appellants (hereinafter referred to as “the appellants”) under Section 173 of Motor Vehicles Act, 1988 against the award dated 23.02.2005 passed by learned Motor Accident Claims Tribunal, Additional District Judge Fast Track No.1, Bharatpur, in MAC No.644/2004 whereby the claim petition filed by the [2025:RJ-JP:25726] (2 of 5) [CMA-196/2006] claimants/respondents has been allowed and compensation to the tune of Rs.2,79,800/- along with interest @ 6% per annum has been awarded.

2. Brief facts giving rise to the present appeal are that on

03.08.2003, the deceased- Bijoo was going to Bharatpur by Jeep No. RJ-05-U-0035. The driver of the said jeep was driving the jeep in a rash and negligent manner, and when the jeep reached near the village Maharajsar, the driver of the jeep, negligently hit a tractor and trolley which was plying adjacent to the jeep, as a result of which, Bijoo sustained injuries and died on the spot.

3. At the time of the accident, the deceased- Bijoo was 35 years of age and earning Rs.6,000/- per month. Hence, the claimants/respondents filed a claim petition for seeking a compensation on account of death of the deceased.

4. The non-claimants/appellants No.1 & 2 filed a joint reply, wherein they denied the averments made by the claimants/respondents and stated that they have been falsely implicated in the case, therefore, prayed for dismissal of the claim petition.

5. The non-claimant/respondent- Insurance Company filed their separate reply to the claim petition wherein denied the averments made in the claim petition and submitted that the driver of the jeep was not having any valid and effective driving license. It was further submitted that the jeep in question was being used for carrying passengers after charging a fair, which was a gross violation of the terms and conditions of the insurance policy. It was also submitted that the tractor-trolley was also responsible for the accident and that the driver, owner and Insurance Company of [2025:RJ-JP:25726] (3 of 5) [CMA-196/2006] tractor-trolley were not made parties to the claim petition. Therefore, the Insurance Company is not liable to pay any compensation.

6. On the basis of the pleadings of the parties, the learned Tribunal framed six issues.

7. The claimants/respondents examined Smt. Indra as AW-1 and Digambar Singh as AW-2 and produced Ex.1 to Ex.8 as documentary evidences Ex.1 FIR, Ex.2 Charge-sheet, Ex.3 Panchnama, Ex.4 Site Plan, Ex.5 Post-mortem report, Ex.6 Registration, Ex.7 Insurance certificate and Ex.8 Driving License.

8. No evidence was led by the non-claimant/respondent No.1- Insurance Company.

9. After hearing learned counsel for the parties and perusing the material available on record, the learned Tribunal has decided Issue Nos.1 to 3 in favour of the claimants/respondents, however, while deciding issue No.4, the statements of AW-1 Smt. Indra and AW-2 Digambar were considered and the learned Tribunal recorded the finding that since the jeep was used for carrying passengers after charging fair of Rs.10, therefore, held that there is a violation of the terms and conditions prescribed in the Insurance Policy. But, while invoking the principle of pay and recover, directed the Insurance Company to pay the amount to the claimant and then to recover the same from the present non- claimants/appellants.

10. Being aggrieved of the findings of the learned Tribunal with regard to the principle of pay and recover, the non-claimants/appellants (owner and driver) of the vehicle have preferred the present appeal. [2025:RJ-JP:25726] (4 of 5) [CMA-196/2006]

11. Learned counsel for the non-claimants/appellants submits that the learned Tribunal has erred in passing the impugned award and he further submits that there was no violation of the terms and conditions of the Insurance Policy, therefore, prayed for modification of the impugned award passed by the learned Tribunal qua issue No.4.

12. Per contra, learned counsel non-claimant/respondent- Insurance Company opposes the said submissions and submits that the learned Tribunal has, after considering the fact that the insured vehicle was used for transport purposes after charging a fair of Rs.10/- which constituted a violation of the Insurance Policy, thus, the principle of pay and recover was rightly invoked by the learned Tribunal, therefore, no interference is required by this Court and prayed for dismissal of the appeal.

13. Heard and considered the submissions made by learned counsel for the parties and also perused the material available on record.

14. From the record of the case, it is revealed that in cross- examination of AW-1 Smt. Indra dated 02.12.2004, it has come on record, that the jeep was owned by Darab Singh and jeep was used for transport purposes. Similarly, in the statements of AW-2 Digamber, this was also deposed by the witness that the jeep No. RJ-05-U-0035 was used for transport purposes and driver of the vehicle was collecting Rs.10 from the passengers. After taking into note the aforesaid evidence of AW-1 Smt. Indra and AW-2 Digamber, learned Tribunal rightly concluded that at the time of the accident, the jeep was used for transport purposes which is in [2025:RJ-JP:25726] (5 of 5) [CMA-196/2006] violation of insurance policy but while taking into consideration that Motor Vehicles Act is a welfare legislation and the claimant should not suffer, the principle of pay and recover was invoked and it has been directed by the learned Tribunal that at the first instance, the Insurance Company will make the payment of compensation to the claimants and thereafter, liberty was granted to the Insurance Company to recover the same from the present appellants.

15. That in view of clear violation of the terms and condition of the insurance policy, arguments of the learned counsel for the appellant can't be accepted.

16. Further a bare perusal of the impugned award, it is revealed that the impugned award is perfectly just and proper and it does not suffer from any legal infirmity, therefore, the present appeal sans merit and dismissed.

17. Accordingly, the present appeal is hereby dismissed.

18. All the pending application(s), if any, shall stand disposed of. DEEPA-54 (MANEESH SHARMA),J