N.I.a.Co.Ltd Vs Bhuban Das

incident dated 2^nd January, 2003, during and in course of which, the deceased and claimants travelling in a vehicle, a Tata Sumo bearing registration No. KL-5E-9877 owned by respondent No.2 met with an accident dashing against an oil tanker standing on the roadside at the relevant point of time. Thereafter, the injured and LRs of four other occupants, who died in the accident filed separate claim applications before the learned 1^st MACT, Mayurbhanj, Baripada disposed of on 19^th December, 2006 directing compensation payable to the claimants by the appellant to the extent and in terms thereof, against which, the appeals have been preferred on the grounds pleaded on record.

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3 . Briefly stated, in MACA No.787 of 2007, the appellant, an injured allowed compensation of Rs.60,000/- payable with interest at the rate of 6% per annum from the date of application filed besides cost. The claimants in MACA No. 773 of 2007 are the LRs of the deceased and for them, the compensation awarded is fixed at Rs.2,13,500/- with same interest and cost payable by the appellant. Similarly, in MACA No. 783 of 2007, compensation has been awarded for an amount of Rs.1,39,500/- in favour of the claimant, namely, mother of the deceased to be paid with interest and cost. In MACA No.784 of 2007, an award is allowed for a sum of Rs.60,000/- in favour of the injured claimant payable at the same rate of interest and also cost. Likewise, in MACA No.785 of 2007, the claimants, who are the wife and minor children of the deceased have been allowed a compensation of Rs.2,13,500/- with interest and cost. For the claimant mother of the deceased in MACA No.786 of 2007, the awarded amount

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stands at Rs.1,65,500/- with interest and cost. Lastly, in MACA No. 788 of 2007, an injury case, the claimant is allowed a compensation of Rs.60,000/- with interest and cost. In all the claim cases, it has been directed that the compensation awarded shall be payable by the appellant with specific directions issued.

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4 . The learned Tribunal framed the following issues for determination, such as, (i) whether the claim applications are maintainable? (ii) whether the deceased named died and also the injured received injuries in the accident dated 2^nd January, 2003 involving the offending vehicle? (iii) did the accident occur due to rash and negligent driving of the drivers of both the vehicles or one of them of the Tata Sumo bearing registration No. KL-5E-9877? and (iv) whether the claimants are entitled to any compensation, if so, to what extent and from whom? With respect to Issue No. (iii), it was held by the learned Tribunal that the accident took place on account of rash and negligent driving on the part of the driver of the offending vehicle, in which, the injured and deceased were travelling by then. On Issue No. (ii), a positive finding has been rendered in support of the claimants. With respect to Issue No. (iv), it has been concluded that the compensation is payable to the claimants by the appellant proved on the basis of evidence received. In fact, the learned Tribunal dismissed MACT Misc. Case No.10 of 20003 but partly allowed the other claim applications ex parte against respondent No.2 and on contest vis-à-vis the appellant.

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5 . Being aggrieved of the compensation allowed denying liability on the ground pleaded, the appellant filed the appeals.

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6 . The primary grounds of challenge to the impugned judgment dated 19^th December, 2006 of the learned Tribunal are, namely, (i) the decision directing compensation is against the weight of evidence on record and contrary to the settled principles of law; (ii) learned Tribunal wrongly relied on the plea of the claimants with regard to the manner in which the accident took place; (iii)the alleged offending vehicle was not involved in the accident thereby failing to appreciate the stand of the appellant in that regard; (iv) in the peculiar facts and circumstances of the case, it was for the learned Tribunal to examine whether the accident had taken place as a result of negligence attributed by the other vehicle; (v) the offending vehicle was carrying gratuitous passengers beyond its capacity; (vi) the vehicle in question is insured on the Act Only Policy and therefore, the occupants are not covered thereunder and where premiums have been paid for two unnamed passengers on their Personal Accident Scheme but the liability has been fixed, which is not legally tenable, inasmuch as, it is not liable to indemnify respondent No.2 and as such, the claim applications ought to have been dismissed; (vii) the vehicle in question was used for hire at the time of accident violating a policy condition of limitation to use and therefore, the appellant is again not liable to pay any such compensation; (viii) as it was a head-on collision between the vehicles, both sides are equally responsible for the accident and therefore, for the contributory negligence, the compensation, if at all allowed, should have been apportioned equally; and (ix) the learned Tribunal

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committed an error of law and facts for not impleading the insurer and insured of the oil tanker and hence, the claim applications should have been dismissed on account of misjoinder and non-joinder of the parties.

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7 . Heard Mr. Dutta, learned counsel for the appellant and Mr. Singh, learned counsel for respondent claimants.

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8 . The primary ground upon which the decision of the learned Tribunal is questioned stands on the liability on the part of the appellant to cover the risk thereby indemnifying respondent No.2 and denying it for the Act Only Policy. Since the challenge is confined to the liability to pay the compensation on such ground, this Court is not discussing and dealing with other issues that are mostly based on factual aspects of the case. In fact, abandoning the other grounds pleaded, the argument is narrowed down to denying the liability by the appellant in view of the nature of the policy. Mr. Dutta, learned counsel for the appellant would submit that the question as to whether a 3^rd party includes all other occupants other than the insurer and if a pillion rider may be treated as such is pending consideration before the Apex Court having been referred to a Larger Bench in Mohana Krishnan S Vrs. K. Balasubramaniyam & others in SLP(C) No.3433 of 2020 considering the fact that there are divergent views expressed, hence, until it is decided, the appeals cannot be adjudicated upon. Mr. Singh, learned counsel for respondent claimants would submit that there is no need for keeping the matters pending before this Court notwithstanding the reference made to the Larger Bench in Mohana Krishnan S (supra) and other

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connected cases as it may be disposed of in view of the decision of this Court in New India Assurance Company Limited Vrs. Sriram Hemram @ Sriram Munda & others 2017(3) T.A.C. 468 (Orissa) and the judgments in Sunita & others Vrs. United India Insurance Company Ltd. & others 2025(3) T.A.C. 353 (SC) and Manuara Khatun and others Vrs. Rajesh Kr. Singh and others 2017(2) T.A.C 5 (SC) decided and disposed of on similar set of facts, wherein, the demand for compensation was in respect of gratuitous passengers and the vehicles had no comprehensive policy.

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9 . Considering the submissions of learned counsel for the respective parties, this Court is inclined to dispose of the appeals on merit. Indeed, the offending vehicle was having an Act Only Policy with premium paid to cover two unnamed passengers travelling therein for an amount of Rs.2 lac each. According to Mr. Dutta, learned counsel for the appellant, the insurer cannot be held liable when the vehicle had an Act Only Policy which is to exclude compensation payable in respect of the gratuitous passengers. In support of the contention advanced, Mr. Dutta, learned counsel cited a judgment of this Court in The Divisional Manager, Oriental Insurance Co. Ltd. Vrs. Arati Mishra and another 2009 (Supp.-II) OLR 959 and batch cases to contend that the Insurance Company is not liable to bear the liability including gratuitous passengers when it is a case of Act Only Policy. One more decision in National Insurance Company Limited Vrs. Balakrishnan

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and another 2013 (1) TAC 1 (SC) is placed reliance on to contend that the appellant is not liable to burden the entire liability since the policy is not a comprehensive one but an Act

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Only Policy, which is not to cover the risk of the gratuitous passengers. Mr. Dutta, learned counsel refers to another decision in Oriental Insurance Company Limited Vrs. Surendra Nath Loomba and others 2013 (1) TAC 15 (SC) while advancing an argument that the Act Only Policy is not to cover any such liability in respect of all the occupants. The contention is that when there is such a policy, not a comprehensive package, the learned Tribunal should not have directed the appellant to cover the risk and pay the compensation to the respondent claimants.

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10 . In Balakrishnan (supra), the Apex Court highlighted upon the distinction between the Act Policy and Comprehensive Policy with reference to Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’). The above decision reflected upon the terms of the contract for being examined to ascertain the nature of Package Policy to cover the liability of an occupant of a vehicle and reiterated that Act Policy cannot cover any such occupant. In so far as the case at hand is concerned, it is a case of Act Only Policy to cover the risk of a 3^rd party and not an occupant travelling in the offending vehicle as a gratuitous passenger. A similar view has been expressed by the Apex Court in Surendra Nath Loomba (supra). That apart, this Court in Arati Mishra (supra) concluded that the Act Only Policy is not to include gratuitous passengers and thus, no liability can be fastened on the insurer.

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11 . Mr. Dutta, learned counsel for the appellant would submit that the matter referred to the Larger Bench in Mohana Krishnan S (supra) is pending decision before the Apex Court

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as of today. Whether an Act Only Policy includes all other persons travelling in the offending vehicle other than the insurer or for that matter, a pillion rider of a two-wheeler is stated to be under consideration before the Apex Court in the case (supra). But in Sunita (supra), the principle of ‘pay and recover’ was invoked, wherein, there was breach of policy conditions like the offending vehicle did not have a valid permit including registration and fitness certificate besides its driver having no valid licence while dealing with the liability involving gratuitous passenger travelling therein. Referring to an earlier decision in National Insurance Company Limited Vrs. Baljit Kaur and others (2004) 2 SCC 1 , it was concluded that due to the negligence of the driver of the offending vehicle as the gratuitous passenger lost his life, the Insurance Company should be directed to satisfy the amount awarded and recover the same from the owner of the vehicle. In Anu Bhanvara Vrs. IFFCO Tokio General Insurance Company Limited and others (2020) 20 SCC 632 referred to in Sunita (supra), the Apex Court held that the injured travelling as a gratuitous passenger was not covered under the insurance policy and therefore, the driver and owner of the vehicle are held liable, however, the insurer should pay the compensation and recover it from the owner applying the principle of ‘pay and recover’. Adopting the above principle, the other decisions are also referred to therein with a direction to the Insurance Company though not liable to indemnify but to pay the compensation and simultaneously, to recover it from the owner of the vehicle. In Manuara Khatun (supra), the Apex Court applied the said principle with a conclusion that

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the driver of one of the vehicles was negligent and though the Insurance Company is not liable because the victims were travelling as gratuitous passengers and directed that the compensation should be paid by the insurer to first satisfy the awarded sum and then to recover it from the insurer in the same proceeding. Likewise, in Sriram Hemram @ Sriram Munda (supra), a Division Bench of this Court concluded that even though the injured was travelling as gratuitous passenger in a goods carriage vehicle to ensure prompt and hassle-free payment of compensation to the family members of the deceased, the Insurance Company should be directed to pay the same with a right of recovery from the owner of the offending vehicle as per law.

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12 . In the case at hand, the driver of the offending vehicle was found to be rash and negligent and was solely responsible for the alleged accident and not the driver of the tanker, which is not even challenged and otherwise also proved from the evidence on record, hence, it is not a case of contributory negligence. The Court considering the case laws cited and discussed hereinbefore is inclined to hold that the appellant cannot be held liable to cover the risk under the policy not being a comprehensive package. Having concluded so, can the appellant be directed to pay the compensation and recover it from respondent No.2 when the matter whether a gratuitous passenger is included in an Act Only Policy is pending before the Apex Court in Mohana Krishnan S (supra). Considering the statutory provisions read with Section 147 of the Act, this Court is unable accept the proposition put forth by Mr. Singh, learned counsel for the respondent claimants to direct the

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appellant to pay and recover the compensation as it would be not consistent with law.

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13 . At this juncture, it would be beneficial to extract the law enunciated by the Apex Court in Baljit Kaur (supra) though referred to in Sunita (supra) with all the relevant paragraphs for better appreciation as to whether for a gratuitous passenger not covered under Act Only Policy, it would be permissible to apply the principle of ‘pay and recover’ directing the insurer accordingly and the same are reproduced herein below:

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“2. The question that arises for consideration in these appeals is whether an insurance policy in respect of a goods vehicle would also cover gratuitous passengers, in view of the legislative amendment in 1994 to Section 147 of the Motor Vehicles Act, 1988. xxx

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The Claims Tribunal relying upon the decision of this Court in New India Assurance Co. v. Satpal Singh (2000) 1 SCC 237, accepted the claim petition, and rejected the contention of the appellant insurance company that the concerned vehicle being a goods vehicle, it would not have to incur any liability with respect to passengers transported in the vehicle.

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It may be noticed at the outset that the Judgment rendered in Satpal Singh case (supra) has been subsequently reversed by a three-judge Bench of this Court in New India Assurance Co. Ltd. Vs. Asha

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Rani (2003) 2 SCC 223, which was followed in the case of Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy (2003) 2 SCC 339.

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Reference in this connection may also be made to National Insurance Co. Ltd. v. Ajit Kumar and Others JT 2003 (7) SC 520.

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In the case of New India Assurance Co. Ltd. Vs. Asha Rani (supra), it was held that the previous decision in Satpal Singh Case, was incorrectly rendered, and that the words ‘any person’ as used in Section 147 of the Motor Vehicles Act, 1988, would not include passengers in the goods vehicle, but would rather be confined to the legislative intent to provide for third party risk. The question in the subsequent judgment in Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy (supra), involved, as in the present case, the liability of the insurance company in the event of death caused to a gratuitous passenger travelling in a goods vehicle. The Court held that the Tribunal and the High Court were not justified in placing reliance upon Satpal Singh case (supra), in view of its reversal by Asha Rani (supra), and that, accordingly, the insurer would not be liable to pay compensation to the family of the victim who was travelling in a goods vehicle.

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It was contended by the learned counsel appearing on behalf of the second and third respondents, the driver and owner of the vehicle respectively, that the

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decision in Asha Rani case (supra) and Konda Reddy case (supra) were delivered with respect to the position prevailing prior to the amendment of Section 147 by the Motor Vehicles (Amendment) Act, 1994. As such, the effect of the legislative amendment was not in question in the above cases, and therefore, the law laid down by these decisions would not be considered as binding law in view of coming into force of the said amendment. Since the accident in the present instance occurred in 1999, this Court would now have to consider afresh the impact of the 1994 amendment, and could not consider itself circumscribed by the aforementioned decisions in the Asha Rani case (supra) and Konda Reddy case (supra) which both involved motor accidents predating the said amendment.

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It is the submission of the respondent vehicle owner and driver that the insertion, by way of legislative amendment, of the words ‘including owner of the goods or his authorized representative carried in the vehicle’ in Section 147 would result in the inference that gratuitous passengers would as well be covered by the scope of the provision. Any other construction, it was urged by the learned counsel for the second and third respondents, would render the effect of the words ‘any person’ as completely redundant. xxx

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Admittedly, it is incumbent upon a Court of law to eschew that interpretation of a statute that would serve to negate its true import, or to render the words of any provision as superfluous. Nonetheless, we find no merit in the above submissions proffered by the learned counsel for the respondent. The effect of the 1994 amendment on Section 147 is unambiguous. Where earlier, the words ‘any person’ could be held not to include the owner of the goods or his authorized representative travelling in the goods vehicle, Parliament has now made it clear that such a construction is no longer possible. The scope of this rationale does not, however, extend to cover the class of cases where gratuitous passengers for whom no insurance policy was envisaged, and for whom no insurance premium was paid, employ the goods vehicle as a medium of conveyance.

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We find ourselves unable, furthermore, to countenance the contention of the respondents that the words ‘any person’ as used in Section 147 of the Motor Vehicles Act, would be rendered otiose by an interpretation that removed gratuitous passengers from the ambit of the same. It was observed by this Court in the case concerning New India Assurance Co. Ltd. Vs. Asha Rani (supra) that the true purport of the words ‘any person’ is to be found in the liability of the insurer for third party risk, which was sought to be provided for by the enactment.

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It is pertinent to note that a statutory liability enjoined upon an owner of the vehicle to compulsorily insure it so as to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment in terms of proviso (ii) appended to Section 95 of the 1939 Act does not occur in Section 147 of the 1988 Act. The changes effected in the 1988 Act vis-a-vis the 1939 Act as regard definitions of 'goods vehicle', 'public service vehicle' and 'stage carriage' have also a bearing on the subject inasmuch as the concept of any goods carriage carrying any passenger or any other person was not contemplated.

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In a situation of this nature, the doctrine of suppression of mischief rule as adumbrated in Heydon's case [3 Co Rep 7a, 76 ER 637] shall apply. Such an amendment was made by the Parliament consciously. Having regard to the definition of 'goods carriage' vis-a-vis 'public service vehicle', it is clear that whereas the goods carriage carrying any passenger is not contemplated under the 1988 Act as the same must be used solely for carrying the goods.

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In Halsbury's Laws of England, Volume 44(1), fourth reissue, para 1474, pp 906-07, it is stated:

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"Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant

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case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

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“(1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy, and then the office of all the judges is always to make such construction as shall: (a) suppress the mischief and advance the remedy; and (b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and (c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good)."

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Heydon's Rule has been applied by this Court in a large number of cases in order to suppress the mischief which was intended to be remedied as against the literal rule which could have otherwise

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covered the field. (See for example, Smt. PEK Kalliani Amma and Others vs. K. Devi and Others, AIR 1996 SC 1963; Bengal Immunity Co. Ltd. vs. State of Bihar and Others, AIR 1955 SC 661; and Goodyear India Ltd. vs. State of Haryana and Another, AIR 1990 SC 781).

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By reason of the 1994 Amendment what was added is ‘including the owner of the goods or his authorized representative carried in the vehicle’. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorized representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorized representative besides the passengers who are gratuitous or otherwise. xxx

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It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons

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other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.”

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14 . The above decision is by a Three-Judge Bench like the Bench in New India Assurance Co. Ltd. Vs. Asha Rani and others (2003) 2 SCC 223 , which was followed in Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy and others (2003) 2 SCC 339 . When such is the legal position, a direction to the insurer to pay and recover even in absence of a liability to cover the risk involving a gratuitous passenger is just not permissible. Any direction in the case of Anu Bhanvara referred to in Sunita (supra) applying the principle of ‘pay and recover’ shall have to be understood as being in exercise of Apex Court’s exclusive jurisdiction under Article 142 of the Constitution of India. In other words, this Court having no such powers cannot invoke the above principle except to follow the law decided in Baljit Kaur (supra) to the effect that an Act Only Policy is not to cover a gratuitous passenger since cannot be treated as a third party, inasmuch as, the insurer is not at all having any liability to discharge with. The Court is also of the

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conclusion that principle of equity cannot be borrowed to issue a direction to the insurer to pay with a right to recover the compensation from the owner since the parties are governed by the contract. On the ground that the insured does not have the means to pay the compensation or it would be difficult on the part of the claimants to recover the same from the insured, according to the Court, cannot as well be a ground to fix such responsibility on the insurer granting the right of recovery in its favour. So, when the amended law vis-à-vis Section 147 of the Act is not to include unauthorized passengers, the liability is, therefore, to be shouldered upon by the owner. According to the Court, only when there is breach of conditions like the offending vehicle had no valid permit, fitness certificate, or the driver having no licence or not having a valid licence to ply the vehicle, the principle of ‘pay and recover’ may be applied but where the policy does not cover the risk, the liability cannot be fastened on the insurer applying such principle. Nevertheless, having regard to the fact that the matter is referred to a Larger Bench in Mohana Krishnan S (supra), this Court is inclined to hold that in case, liability is entirely fixed on the insurer with any such decision therein including the gratuitous passengers in an Act Only Policy taking into account the law decided in Baljit Kaur and Asha Rani (supra), the compensation directed by the learned Tribunal shall have to be simply restored to ensure its disbursement to the respondent claimants without delay.

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15 . Accordingly, it is ordered.

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16 . In the result, for the discussion hereinbefore with the reasons stated, the appeals stand disposed of thereby setting

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aside the common award directed in MACT Nos.4, 5, 6, 7, 8, 9 and 190 of 2003 and passed by the learned 1^st MACT, Mayurbhanj, Baripada subject to the rider imposed depending on the decision in Mohana Krishnan S (supra). As a necessary corollary, it is directed that the statutory deposits in the appeals shall be refunded forthwith upon receiving a requisition from the appellant in that regard.

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Balaram

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Signature Not Verified

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Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 24-Jun-2026 18:57:14

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N.I.a.Co.Ltd v. Bhuban Das

Case brief

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N.I.a.Co.Ltd v. Bhuban Das

Case brief

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