Rajbhawan Road, Civil lines, Jaipur (Raj.) v. District Jaipur

1. Hanuman Sahai s/o Late Shri Kajod Mal, aged about 52 years, r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, District Jaipur.

2. Ramoti Devi w/o Hanuman Sahai, aged about 47 years, r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, District Jaipur ----Claimants/Respondents

3. Shri Khemraj s/o Shri Kaluram Meena, R/o Berdi Ki Dhani, Gra, Kachherewala @ Choklyawas, Post Kukas, Tehsil Aamer, District Jaipur (Raj.)

4. Shri Babulal s/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ---Non-Claimant No.2 to 3/Respondents ---Owner S.B. Civil Miscellaneous Appeal No. 1659/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj. ----Non-Claimant No.3/Appellant Versus

1. Jagdish S/o Ramdhan, aged about 33 years, r/o Banyawala Ki Dhani Gram Rampura, Tehsil Amer, Distt. Jaipur ---Claimant/Respondent

2.Shri Khemraj S/o Shri Kaluram Meena, r/o Berdi Ki Dhani, Gram Kachherawala @ Choklyawas, Post Kukas, Tehsil Amer, Distt. Jaipur (Raj.) ---Owner

3.Shri Babulal S/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ---Driver S.B. Civil Miscellaneous Appeal No. 1660/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur (Raj.) [2025:RJ-JP:20865] (3 of 13) [CMA-1664/2016] ----Non-Claimant No.3/Appellant Versus

1. Ramchand Meena s/o Hanuman Meena, aged about 24 years, r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, District Jaipur.

2. Shri Khemraj s/o Shri Kaluram Meena, r/o Berdi Ki Dhai, Gram Kachherewala @ Choklyawas, Post Kukas, Tehsil Aamer, District ---Claimant/Respondent Jaipur (Raj.) ---Owner

3. Shri Babulal s/o Shri Jhuntharam, R/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ----Non-Claimant Nos.2 to 3/Respondents ----Driver S.B. Civil Miscellaneous Appeal No. 1661/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj. ----Non-Claimant No.3/Appellant Versus

1. Chandi Devi S/o Mewa Ram Meena, aged about 36 years r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, District Jaipur

2. Shri Khemraj s/o Shri Kaluram Meena, r/o Berdi ki Dhani, Gram Kachherewala @ Choklyawas, Post Kukas, Tehsil Aamer, District Jaipur (Raj.) ----Claimant/Respondent ----Owner

3. Shri Babulal s/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ---Non-Claimant No.2 to 3/Respondents S.B. Civil Miscellaneous Appeal No. 1662/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj. ----Non-Claimant No.3/Appellant Versus

1. Dhapa w/o Shivram Meena, aged about 48 years, r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, District Jaipur [2025:RJ-JP:20865] (4 of 13) [CMA-1664/2016]

2. Shri Khemraj s/o Shri Kaluram Meena, r/o Berdi ki Dhani, Gram Kachherewala @ Choklyawas, Post Kukas, Tehsil Aamer, District Jaipur (Raj.) ----Claimants/Respondent ---Owner

3. Shri Babulal s/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ---Non-Claimant No.2 to 3/Respondents S.B. Civil Miscellaneous Appeal No. 1663/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj. ----Non-Claimant No.3/Appellant Versus

1. Kailash s/o Mool Chand Meena, aged about 33 years, r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, Distt. Jaipur

2. Shri Khemraj s/o Shri Kaluram Meena, R/o Berdi Ki Dhani, Gram Kachherewala @ Choklyawas, Post Kukas, Tehsil Aamer, District Jaipur (Raj.) ----Claimant/Respondent ---Owner

3. Shri Babulal S/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ---Non-Claimant Nos.2 to 3/Respondents ---Driver S.B. Civil Miscellaneous Appeal No. 1665/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj. ----Non-Claimant No.3/Appellant Versus

1. Mukesh Kumar s/o Nathu Ram Meena, aged about 28 years, r/o Banyawala ki Dhani, Gram Rampura, Tehsil Amer, District Jaipur

2. Shri Khemraj s/o Shri Kaluram Meena, r/o Berdi ki Dhani, Gram Kachherewala @ Choklyawas, Post Kukas, Tehsil Aamer, District Jaipur (Raj.) ----Claimant/Respondent ----Owner [2025:RJ-JP:20865] (5 of 13) [CMA-1664/2016]

3. Shri Babulal s/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) Non-Claimant Nos.2 to 3/Respondents ---Driver S.B. Civil Miscellaneous Appeal No. 1666/2016

1. The Oriental Insurance Company Ltd., Regional Office-III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj. ----Non-Claimant No.3/Appellant Versus

1. Girraj s/o Ramanarayan, aged about 16 years, minor represented through his father Ramnarayan s/o Bhanwarlal, age about 45 year, r/o Banyawala ki dhani Gram Rampura, tehsil Amer, District Jaipur ----Claimant/Respondent

2. Shri Khemraj s/o Shri Kaluram Meena, r/o Berdi Ki Dhani, Gram Kachherewala @ Choklyawas, Post Kukas, Tehsil Amer, Distt. Jaipur (Raj.)

3. Shri Babulal s/o Shri Jhuntharam, r/o Old Ghat, Khanya Agra Road, Jaipur (Raj.) ---Non-Claimant Nos.2 to 3/Respondents ---Owner S.B. Civil Miscellaneous Appeal No. 1667/2016

1. The Oriental Insurance Company Ltd., Regional Office- III, 52 Main Rajbhawan Road, Civil Lines, Jaipur Raj Versus ----Appellant

1. Urmila D/o Ramanarayan, R/o Banyawala Ki Dhani Gram Rampura, Tehsil Amer, Distt. Jaipur.

2. Shri Khemraj S/o Shri Kaluram Meena, R/o Berdi Ki Dhani, Gram Kachherewala Alias Choklyawas, Post Kukas, Tehsil Amer, Distt. Jaipur Raj. Owner

3. Shri Babulal S/o Shri Jhuntharam, R/o Old Ghat, Khanya Agra Road, Jaipur Raj Driver ---Non-Claimant Nos.2 to 3/Respondents [2025:RJ-JP:20865] (6 of 13) [CMA-1664/2016] For Appellant(s) : Mr. Sandeep Jain For Respondent(s) : Mr. Abhinav Saxena with Ms. Neha Garg HON'BLE MR. JUSTICE MANEESH SHARMA Judgment JUDGMENT RESERVED ON: 05/05/2025 JUDGMENT PRONOUNCED ON: 22/05/2025

1. This batch of appeals has been filed by the appellant- Insurance Company under Section 173 of Motor Vehicles Act, 1988 against the judgment and award dated 18.12.2015 passed by the learned Judge, Motor Accident Claims Tribunal and the learned Additional District & Sessions Judge, Sr. No.4, Jaipur (hereinafter referred to as "the learned Court below"), whereby the claim petitions filed by the claimants/respondents have been allowed.

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

02.12.2007, the deceased/injured were going from Banyawala village to Goner, near Jagdish Ji Temple, to attend a "Sawamani" ceremony in a Pickup Bearing Registration No.RJ-14-GB-4478 (hereinafter referred to as "the vehicle in question"). When they reached near Sahiwad T Point, at about 01:00 PM, the driver of the Pickup drove the vehicle at high speed and in a rash and negligent manner, therefore, the vehicle overturned. As a result of the said accident, one Muli D/o Hanuman died on the spot, whereas other claimants sustained various injuries. Therefore, the claimants have filed various claim petitions seeking compensation for the accident. [2025:RJ-JP:20865] (7 of 13) [CMA-1664/2016]

3. All the claim petitions arising from the accident dated

02.12.2007, have been connected and tried together.

4. In these claim petitions, neither the non-claimant owner nor the driver of the vehicle filed their reply.

5. The non-claimant-Insurance Company, while denying the allegations made in these claim petitions, filed its reply and submitted that the vehicle in question was a goods carrier. Therefore, the Insurance Company is not liable to pay any compensation. It was further submitted that due to a breach of the policy, no liability can be fastened upon the Insurance Company.

6. On the basis of the pleadings of the parties, the learned Tribunal framed the following issues: ^^1-vk;k iz'uxr vkjts&14&thch&4478 ds pkyd foi{kh ckcwyky ds }kjk fnukad 02-12-2007 dks le; 1-00 ih-,e- ij lkbZokM Vh ikWbUV ds ikl] iqfyl&Fkkuk vkesj] t;iqj {ks= esa mDr okgu dks mis{kk o mrkoysiu ls pykdj dh x;h nq?kZVuk esa vk;h pksVksa ds ifj.kkeLo:i ewyh nsoh dh e`R;q dkfjr gqbZ rFkk fxjkZt] jkepUnz] galjkt] txnh'k] panh nsoh] eqds'k] dSyk'k] xksnojh] /kkik nsoh] cnzh] eerk] djek] mfeZyk o NksVhyky ds pksVsa vk;h \ 2- vk;k mDr okgu pkyd foi{kh ckcwyky rc mDr okgu Lokeh vizkFkhZ [ksejkt ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk\ 3- vk;k foi{kh la[;k&3 chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkifRr;ksa ,oa fo'ks"k [2025:RJ-JP:20865] (8 of 13) [CMA-1664/2016] dFku ds en~nsutj chek dEiuh vius nkf;Ro ls eqDr gks ldrh gS ugha rks bldk izHkko \ 4- vk;k nkosnkj vius nkos@nkok esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k;lEer jkf'k ik ldrs gSa] gka rks dkSu&dkSu nkosnkj fdruh&fdruh] jkf'k fdl&fdl foi{kh ls ,oa fdl izdkj ls ik ldrs gS \ 5- vuqrks"k \**

7. In order to substantiate the averments made in the claim petitions, the claimants have examined of AW.1-Kaluram, AW.2- Kailash, AW.3-Mukesh, AW.4-Jagdish, AW.5-Ramnarayan, AW.6- Hanuman, AW.7-Urmila, AW.8-Dhapa Devi, AW.9-Chandi Devi and AW.10-Ramchandra and also exhibited certain documents.

8. The non-claimant/respondent-Khemraj, owner of the vehicle did not led any evidence.

9. Despite granting the opportunity, the appellant-Insurance Company also did not led any evidence.

10. After hearing the arguments of the respective parties, the learned Tribunal, in its impugned award dated 18.12.2015, partly allowed the claim petitions and awarded compensation in favour of the claimants. The amount of compensation so awarded to the claimants is reflected in the table mentioned below: List of appeals with awarded amount and lower court details S. No. Appeal No. Appeal Title Awarded amount Claim Petition No.

1. C.M.A. 1664/ 2016 OIC Vs KARMA AND OTHERS (Injury)

2. C.M.A. 1659/ 2016 OIC Vs JAGDISH AND OTHERS (Injury) 18,500 39/2013(676/ 2008) 12,000 47/2013(684/ 2008) Claim Petition Title KARMA VS KHEMRAJ JAGDISH Vs KHEMRAJ [2025:RJ-JP:20865] (9 of 13) [CMA-1664/2016]

3. C.M.A 1660/ 2016 OIC Vs RAMCHAND AND OTHERS (Injury)

4. C.M.A. 1661/ 2016 OIC Vs CHANDI AND OTHERS (Injury)

5. C.M.A. 1662/ 2016 OIC Vs DHAPA AND OTHERS (Injury)

6. C.M.A. 2016

7. C.M.A. 1665/ 2016 OIC Vs KAILASH AND OTHERS (Injury) OIC Vs MUKESH KUMAR AND OTHERS (Injury)

8. C.M.A. 1666/ 2016 OIC VS GIRRAJ AND OTHERS (Injury)

9. C.M.A. 1667/ 2016

10. C.M.A. 1643/ 2016

11. C.M.A. 1644/ 2016 OIC VS URMILA AND OTHERS (Injury) OIC Vs KALURAM AND OTHERS (Death of Mooli) OIC Vs HANUMAN AND OTHERS (Death of Mooli) 13,000 49/2013(686/ 2008) RAMCHAND Vs KHEMRAJ 12,000 46/2013(683/ 2008) 21,300 (679/2008) 25,000 (681/2008) 13,000 45/2013(682/ 2008) 15,500 37/2016(674/ 2008) 19,130 38/2016(675/ 2008) 30% OF 6,33,200 (619/2008) 70% OF 6,33,200 36/2013(639/ 2008) CHANDI Vs KHEMRAJ DHAPA Vs KHEMRAJ KAILSAH Vs KHEMRAJ MUKESH KUMAR Vs KHEMRAJ GIRRAJ Vs KHEMRAJ URMILA Vs KHEMRAJ KALURAM Vs BABULAL HANUMAN & OTHERS Vs KHEMRAJ

11. While deciding the Issue No.3, qua fastening the liability on Insurance Company, the learned Tribunal decided the said issue against the appellant-Insurance Company. This decision was based on the ground that the Insurance Company failed to lead any evidence. Therefore, the Insurance Company cannot seek exoneration from the liability, accordingly, the liability to pay compensation has been fastened upon the Insurance Company.

12. Learned counsel for the appellant-Insurance Company initially vehemently argued that in view of the facts that the deceased/injured persons were travelling in goods vehicle, there [2025:RJ-JP:20865] (10 of 13) [CMA-1664/2016] was a violation in policy terms and condition. Therefore, the Insurance Company should not be held liable to pay the compensation amount, and the finding of Issue No.3 should not have been recorded against the appellant. The second contention of the learned counsel for the appellant is that merely because the Insurance Company failed to led any evidence, it cannot be concluded that the appellant-Insurance Company is only responsible for paying compensation to the deceased/injured. Learned counsel further submits that in view of the violation of the terms and conditions of policy as well as the principle of pay and recover, ought to have been applied, therefore, the impugned order and the finding on Issue No.3, which fastened liability upon the appellant-Insurance Company, ought to be modified.

13. Per contra, the learned counsel for the respondents supported the impugned award and submitted that, since the vehicle in question is insured, the liability has been rightly fastened upon the Insurance Company.

16. Heard the learned counsel for the parties and perused the material available on record.

17. From the record, it reveals that while issuing notice to the claimants and during the hearing of the stay application filed by the appellant, on 11.04.2016, this Court issued the following order: "Issue notice to the respondents of the appeal as also of the stay application. Having heard the learned counsel for the appellant and carefully perused the relevant material on record including the impugned award, it is ordered that the operation of the impugned judgment [2025:RJ-JP:20865] (11 of 13) [CMA-1664/2016] and award shall remain stayed, provided the appellant deposits the entire amount of compensation with the learned Tribunal within a period of four weeks from today. Out of the amount so deposited, 50% amount under the award shall be disbursed to the claimants and rest of the amount under the award shall be kept in fixed deposit in any Nationalized Bank, but the same shall not be disbursed to the claimants till further orders of this Court." ...therefore, it reflects that 50% of the awarded amount has already been disbursed to the claimants and they have utilized the received compensation, it would be unjust now to ask the claimants to deposit the 'money back'.

18. That while considering the contention of the learned counsel for the appellant that the Insurance Company should not be held liable because the deceased/injured were travelling in a goods vehicle, but while weighing the peculiar facts of the case, where a very meagre amount has been awarded as compensation to various injured and half of the same has already been disbursed to them.

19. Thus, keeping in view the peculiar facts and circumstances of this case, I am of the considered view that the principles of pay and recover is required to be invoked. Accordingly, this batch of appeals preferred by the Insurance Company is disposed of with the direction that the Insurance Company shall be liable to pay the awarded compensation to the claimants. However, in view of the violation of the terms and conditions of policy, the Insurance Company retains the right to recover the said amount of [2025:RJ-JP:20865] (12 of 13) [CMA-1664/2016] compensation from the respondent-Khemraj (owner of the vehicle) in accordance with law.

20. The Hon'ble Supreme Court, in the case of Anu Bhanvara Etc. Vs. IFFCO Tokio General Insurance Company Limited & Ors. reported in (2019) AIR (SC) 3934, decided on 09.08.2019 held in similar circumstances that the principles of pay and recover should be invoked, and the Insurance Company must be given the right to realize/recover the compensation from the owner.

21. Considering the fact that half of the compensation amount has already been disbursed to the claimants, I am of the view that the interest of justice will be served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant and subsequently, recover the same from the owner of the vehicle in accordance with law.

22. In light of the foregoing discussions, this present batch of appeals is disposed off with a modification to the findings of Issue No.3, whereby the liability to pay compensation, which was fastened upon the Insurance Company, is modified with a direction that, in view of the violation of the terms and conditions of policy which is evident on record. The Insurance Company shall be liable to pay the awarded compensation amount to the claimants in all appeals. However, while applying the principles of pay and recover, the Insurance Company shall have the right to realize the amount of compensation from the respondent-Khemraj (owner of the vehicle) in accordance with law.

23. The remaining part of the impugned order is upheld, with no order as to cost. [2025:RJ-JP:20865] (13 of 13) [CMA-1664/2016]

24. Accordingly, this batch of appeals stands disposed of.

25. Pending application(s), if any, stand(s) disposed of.

26. A copy of this order shall be placed in the connected files. Seema/47-57 (MANEESH SHARMA),J Whether Reportable : Yes/No