Allowed

Shriram General Insurance Company Limited v. Smt. Rajnibai

Chhattisgarh HC11 Mar 2024MAC/152/2020

Case brief

AI extract

What is this about?

The appellant insurance company appealed against an award granting compensation for the death of a deceased in a motor accident. The court held that the deceased was an unauthorized gratuitous passenger in excess of seating capacity, exonerating the insurer. However, invoking the 'pay and recover' doctrine, the insurer must pay the award before recovering it from the owner and driver.

What did the court decide?

The appeal is allowed. The 'pay and recover' doctrine is applied; the Insurance Company is directed to pay the award amount first and then recover it from the owner and driver.

Shriram General Insurance Company Limited Vs Smt… — Motor Accident Claims | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 152 of 2020

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Shriram General Insurance Company Limited, E-8, EPIP Industrial Area, Sitapura, Jaipur, Rajasthan Through Office, New Bus Stand, Upar Complex, Housing Board, Rajnandgaon (C.G.) (Non-applicant No. 3).

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---- Appellant

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Versus

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Smt. Rajnibai, W/o Late Ramesh Loshi, Aged about 26 years.

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Bhupesh Verma (Minor), S/o Late Ramesh Lodhi, Aged about 07 years.

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Ragini Verma (Minor), D/o Late Ramesh Lodhi, Aged about 03 years,

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Pyari Verma, S/o Pardesi Lodhi, Aged about 61 years,

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Bacchan Bai, W/o Pyari Ram Lodhi, Aged about 58 years. Respondents No. 2 and 3 are minors are represented by their natural guardian Mother Smt. Rajnibai, W/o Late Ramesh Lodhi. All R/o Village – Singarpu, Thana – Gandai, Tehsil-Chhuikhadan, Distt. Rajnandgaon (C.G.). (Claimants)

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Daneshwar @ Karan Tiwari, S/o Late Bhagwati Prasad Tiwari, Aged about 40 years, R/o House No. 563, Village Silhati, Thana Sahaspur, Lohara, Distt – Kabirdham (C.G.). (Driver)

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Ubhay Patel, S/o Dulari Patel, Aged about 30 years, R/o Bisinjhori, Thana Sahaspur Lohara, Distt. Kabirdham (C.G.). (Owner)

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General Manager, District Trade and Industrial Center, Dhamtari, District Dhamtari (C.G.). ---- Respondents

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Utsav Mahiswar, Advocate. For Res. No. 1 to 5 : Mr. Abhishek Sharma, Advocate. For Res. No. 6 & 7 : Mr. Shivendu Pandya, Advocate.

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Hon'ble Mr. Justice Arvind Kumar Verma

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Order on Board

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12.03.2024

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This appeal is by the insurance company under Section 173 of the Motor Vehicles Act, 1988 (henceforth “Act, 1988”) against the impugned award dated 26^th September, 2019 passed by Additional Motor Accident Claims Tribunal, Khairagarh, District Rajnandgaon (C.G.) in Claim Case No. 52/2017.

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By the impugned award, the learned Claims Tribunal has awarded a total sum of Rs. 9,26,800/- alongwith interest @ 6% per annum to the appellants/claimants, on account of death of deceased Ramesh Lodhi in an unfortunate accident, which took place on 05.06.2027 when the deceased was travelling in offending JCB vehicle bearing registration No. C.G. 9 C. 8119, owned by respondent No. 7 and insured with the appellant/Insurance Company, which was being driven by respondent No. 6 – Daneshwar @ Karan Tiwar in a rash & negligent manner, as a result of which the said vehicle turned turtle, Ramesh Lodhi sustained grievous injuries and ultimately

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succumbed to the same.

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As per the pleadings of the claim application filed under Section 166 of the MV Act, the deceased was working as skilled Labour and used to earn Rs.6,000/- per month & Rs.72,000/- per annum. The appellants/claimants being unfortunate parents, widow and children of the deceased had filed claim application claiming compensation to the tune of Rs.16,00,000/- before the Claims Tribunal.

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The claim application was resisted by respondent/driver, owner and Insurance Company of the offending vehicle on various grounds.

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The Tribunal, on a close scrutiny of evidence led, material placed on record and submissions made by the parties, held that the accident had occurred due to rash and negligent driving of offending vehicle JCB registration No. C.G. 9 C. 8119 by its driver Daneshwar @ Karan Tiwari / respondent No. 6; Ramesh Lodhi, aged about 26 years, died on account of injuries sustained by him in the said accident. The appellant/insurance company is liable for payment of compensation to the claimants as it could not establish violation of policy conditions and awarded aforesaid sum in favour of the claimants.

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Learned counsel appearing for the appellant /Insurance Company would submit : deceased was sitting in the JCB vehicle as a labour/gratuitous passenger; sitting capacity of JCB vehicle is only one; appellant/insurance company is not

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liable to cover the risk of gratuitous passenger/labour sitting in the JCB vehicle nor had assumed such risk by entering into special contract with the owner of the vehicle and by charging extra premium, therefore, the Tribunal has fallen in error in saddling the liability upon the appellant/insurance company to the claimants.

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On the other hand, learned counsel for the respondents/owner & driver supports the impugned award. Hence, compensation has been awarded which does not required any interference by this Court.

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Learned counsel for the respondents/claimants submits that the Tribunal considering all the relevant aspects of the matter has rightly fastened liability on the insurance company. Alternatively he submits that if this Court comes to the conclusion that the insurance company is liable to be exonerated from its liability, the considering the facts and circumstances of the case and the decisions of the Hon'ble Supreme Court in the matter of Manuara Khatun and others Vs. Rajesh Kumar Singh and others, (2017) 4 SCC 796 and Shivawwa and another Vs. Branch Manager, National India Insurance Company Limited and another, (2018) 5 SCC 762, the order of pay and recover may be passed in this case.

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I have heard learned counsel for the parties and perused the record of Claims Tribunal.

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From careful perusal of the records, it is quite vivid that learned Claims Tribunal has erred in not appreciating the evidence of Insurance Company's Legal Officer Prashan Bhomia (DW-3), who had specifically submitted that there was a breach of Insurance Policy as the deceased was travelling as an unauthorized gratuitous passenger and the Insurance Company has not taken any premium for covering the risk of passengers being carried in the said vehicle; further from the perusal of the certificate of Registration of offending vehicle (Ex.D/1) and Insurance policy (Ex.D-2), it is quite clear that Sitting capacity of JCB vehicle is also 0+1. Therefore, the Tribunal, on the face has committed error in holding the appellant/insurance company liable for payment of compensation to the claimants who was sitting in the vehicle as a gratuitous passenger/labourer, as such, the Tribunal was not justified in fastening liability upon the Insurance Company. Therefore, on account of there being breach of policy conditions, the Insurance Company is exonerated from its liability to pay compensation to the claimants. However, considering the fact that at the time of accident the offending vehicle was duly insured with the insurance company, in view of the law laid down by the Hon'ble Supreme Court in Manuara Khatun and others (supra) and Shivawwa and another (supra), this Court feels it proper to order for “ pay and recover” in this case, meaning thereby that the Insurance Company shall first pay the amount of

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compensation to the claimants and then recover the same from owner & driver of the offending vehicle in accordance with law.

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In view of forgoing reasons, the appeal is allowed. The doctrine of pay and recover shall be applied and the Insurance Company is exonerated from its liability to pay the compensation to the claimants/respondent Nos. 1 to 5. Therefore, the appellant/Insurance Company is directed to first pay the award amount and then to recover it from the respondent No. 6 & 7 i.e. driver namely- Daneshwar @ Karan Tiwari and Owner of the vehicle registration No. C.G./9C-8119, namely- Ubhay patel. No order as to costs. Sd/-

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(Arvind Kumar Verma) Judge

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amita

Shriram General Insurance Company Limited v. Smt. Rajnibai

Case brief

What is this about?

What did the court decide?

Shriram General Insurance Company Limited v. Smt. Rajnibai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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