Partly allowed

Oriental Ins. Co. Ltd. v. Smt.Tandra Paul Sutradhar and Ors.

Tripura HC17 Jul 2017MAC App./101/2014

Case brief

AI extract

What is this about?

The High Court disposed of three motor accident claims appeals involving an insurer appealing awards to dependents of deceased and injured parties. The court reduced awards by deducting the father's share as a non-dependent. For gratuitous passengers, the insurer was directed to pay the award and recover it from the vehicle owner under the pay-and-recover principle.

What did the court decide?

Appellant-insurer directed to deposit reduced compensation and claim for gratuitous passengers with interest, to be recovered from the vehicle owner.

Oriental Ins. Co. Ltd. Vs Smt.Tandra Paul Sutradhar and Ors. — Insurance | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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MAC APP. NO.101 OF 2014

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The Oriental Insurance Company Ltd., Having its Divisional Office situated at 44/2, Central Road, P.O. – Agartala, P.S. – East Agartala, District – West Tripura, Representing by the Divisional Manager of the said Company.

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…. Appellant.

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-: Versus :-

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Smt. Tandra Paul (Sutradhar), W/O. – Lt. Bikash Sutradhar, Resident of Village – Surjyamani Nagar, P.S. – Amtali, District - West Tripura. ….. Claimant Respondent. 2. Sri Biswajit Debbarma, S/O. Lt. Suresh Chandra Debbarma, Resident of Village – Badharghat Matri Palli, P.S. – West Agartala, P.O. – Badharghat, District - West Tripura. [Owner of the Vehicle No.TR-01D-3988 (Tata Magic)]. ….. Owner Respondent.

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MAC APP. NO.102 OF 2014

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…. Appellant.

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-: Versus :-

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Sri Jogyaswar Sutradhar, S/O. – Lt. Balaram Sutradhar.

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Sri Dharjabashi Sutradhar, W/O. – Sri Jogyaswar Sutradhar.

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Smt. Tandra Paul (Sutradhar), W/O. – Lt. Bikash Sutradhar, 4. Miss Adhyeta Sutradhar, D/O. – Lt. Bikash Sutradhar, All are resident of Village and P/O – Surjyamani Nagar, P/S – Amtali, District – West Tripura. (Claimant Respondent No.4 being minor is represented by her natural guardian, next friend

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mother Smt. Tandra Paul (Sutradhar) i.e. Claimant Respondent No.3).

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….. Claimant Respondents.

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Sri Biswajit Debbarma, S/O. Lt. Suresh Chandra Debbarma, Resident of Badharghat Matri Palli, P.O. – Badharghat, P.S. – West Agartala, District - West Tripura. [Owner of Vehicle No.TR-01D-3988 (Tata Magic)].

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….. Owner Respondent. MAC APP. NO.104 OF 2014

…. Appellant.

-: Versus :-

Miss Adhyeta Sutradhar, D/O. – Lt. Bikash Sutradhar, Being minor she is represented by her natural guardian, next friend mother Smt. Tandra Pal (Sutradhar), W/O. – Lt. Bikash Sutradhar, Resident of Village and P.O. – Surjyamani Nagar, P.S. – Amtali, District - West Tripura.

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….. Claimant Respondent.

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Sri Biswajit Debbarma, S/O. Lt. Suresh Chandra Debbarma, Resident of Village – Badharghat Matri Palli, P.S. – West Agartala, P.O. – Badharghat, District - West Tripura. [Owner of Vehicle No.TR-01D-3988 (Tata Magic)].

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….. Owner Respondent.

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B E F O R E

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THE HON’BLE THE CHIEF JUSTICE

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Counsel for the appellant : Mr. K. Bhattacharjee, Advocate. Counsel for the respondents : Mr. P. Roy Barman, Advocate. Mr. K. Nath, Advocate. Mr. B. Sutradhar, Advocate. Date of hearing : 21-6-2017. Date of delivery of Judgment : 17-7-2017 . & Order

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JUDGMENT & ORDER

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This bunch of appeals U/s 173, Motor Vehicles Act, 1988 arising out of the same vehicular accident was heard together and is now being disposed of by this common judgment.

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The common facts giving rise to the three appeals may be briefly noticed at the outset. On 28.12.2012 at about 9.30 p.m., the late Bikash Sutradhar was riding a Vespa Select scooter bearing No. TR-01-A-7025 with his wife, Smt Tandra Paul (Sutradhar), and his minor daughter, namely, Ms. Adhyeta Sutradhar alias Tethi proceeding towards his house at Surjyamaninagar from Agartala when the Tata Magic bearing registration No. TR-01-D-3988 coming from the opposite side at a high speed and driven in a rash and negligent manner hit his scooter thereby causing serious injuries on the three of them. They were immediately taken to GBP Hospital, Agartala where the said Bikash Sutradhar succumbed to his injuries while the wife and their minor daughter were referred and taken to SSKM Hospital, Kolkata for better treatment. As no seat was available at SSKM Hospital, they were ultimately admitted to Apollo Gleneagles Hospital, Kolkata from 29-12-2012 to 8-1-2013. Surgeries were performed on the wife four times on her head, face and nose during that period, for which she had to incurred a sum ₹5,21,950/-. Even after her discharge from the hospital, she had to attend the OPD of the Hospital from time to time till 15-2-2013. Similarly, as no seat was available at SSKM Hospital, the minor daughter was also admitted to Apollo Gleneagles Hospital, Kolkata and underwent treatment from 29-12-2012 to 3-1-2013. Six operations were performed on the minor daughter, for which a sum of ₹6,32,498/- was incurred. Despite the treatment, she visited the Hospital from time to time for further treatment. She claimed a compensation of ₹30,82,498/-.

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The deceased Bikash Sutradhar is survived by the said Smt. Tandra Paul (Sutradhar), the said Adhyeta Sutradhar, his father, Jogyaswar Sutradhar

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and his mother, Smt. Dharja Bashi Sutradhar. T.S. (MAC) No. 48 of 2013 (from which MAC Appeal No. 102 of 2014 was filed) was filed by these legal representatives of the deceased claiming compensation of ₹2,18,60,000/- for the death of the deceased. T.S. (MAC) No. 118 of 2013 (from which MAC Appeal No. 101 of 2014 was filed) was filed by the said Smt. Tandra Paul (Sutradhar) claiming a compensation of ₹27,71,950/-. T.S. (MAC) No. 119 of 2013 from which MAC Appeal No. 104 of 2014 was filed) was filed by the minor daughter, namely, Adhyeta Sutradhar to claim a compensation of ₹30,82,498/-.

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To avoid complications, I will first deal with MAC Appeal No. 102 of 2014 and decide it and thereafter make an attempt to dispose of the remaining appeals on the basis of the said decision. It may be noted that in this appeal, the appellant is challenging the judgment dated 16-5-2014 passed by the Motor Accident Claims Tribunal, West Tripura in T.S. (MAC) No. 48 of 2013 awarding a compensation of ₹71,91,577/- in favour of the respondentclaimants together with interest @ 9 % per annum with effect from the date of the claim petition. The case of the claimants is that the accident occurred due to the rash and negligent driving of the driver of the Tata Magic, for which West Agartala Police registered West Agartala P.S. case No. 343/2012 U/s 279/304A IPC. According to the claimants, the deceased was aged about 45 years at the time of the accident and was working as Assistant Manager, State Bank of India, Malarmath Branch, Agartala at the time of the accident and was drawing a monthly salary of ₹52,000/-, and all of them were his dependants. The respondent-owner of the vehicle contested the claim petition and filed his written statement. His main contention is that there was no rash and negligent driving by the driver of the Tata Magic, who had a valid driving license at the time of the accident. He also averred that the vehicle was duly insured with the appellant at the time of accident.

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The insurer-appellant contested the claim petition and filed its written statement. Though the written statement runs into eight pages, the sum and substance of the case of the insurer is that no accident took place involving the

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Tata Magic and that it has no liability whatsoever inasmuch as there is no evidence of rash and negligent driving by the driver of the said vehicle. However, in the cross-examination, a plea was taken by the insurer for the first time that there was contributory negligence on the part of the deceased in the vehicular accident. The following issues were framed by the Tribunal:

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Whether the vehicle bearing registration No. TR-01-D-3988 (Tata Magic) and TR-01-A-7025 (Vespa Select Scooter) met with an accident on 28-12-2012 at about 9.30 p.m. on Agartala Bishagarh road in front of Bordowali School under West Agartala P.S. due to rash and negligent driving of the vehicle bearing No. TR-01-D-3988 (Tata Magic)?

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Whether deceased Bikash Suratdhar died as a result of that accident?

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Whether the petitioners are entitled to get any compensation and if so, what shall be the reasonable amount?

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Who shall make the payment of compensation, if any?

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To substantiate their claim petition, the respondent No.3 filed her examination-in-chief by affidavit and exhibited documents such as copies of the FIR, inquest report, PM report as Exbt. 1 series, salary certificate of the deceased, the birth certificate of the respondent No. 4 and his admit card, the driving license of the deceased, etc. The insurer examined its Administrative Officer as its witness and proved the charge sheet in respect of the West Agartala PS case No. 343/12 U/s 279/304-A IPC. At the conclusion of the trial, the Tribunal passed the impugned judgment awarding a compensation of ₹71,91,577/-, and this appeal filed thereagainst. The Tribunal recorded the finding that even though there was head on collision between the scooter and the Tata Magic, the charge sheet relied on by the appellant established that there was no fault on the part of the scooterist; that there was no evidence to substantiate the case of the insurer that as there were two pillion riders, the deceased could not control the speed, which contributed to the accident and MAC APP NO.101 OF 2014 MAC APP NO.102 OF 2014 MAC APP NO.104 OF 2014 Page 5 of 17

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that the accident did not take place due to the rash and negligent driving of the deceased. The Tribunal further recorded that the accident took place due to the rash and negligent driving of the Tata Magic as corroborated by the charge sheet and that the mere fact the scooter and the truck were coming from opposite directions did not necessarily lead to the conclusion that contributory negligence could be fastened upon the deceased.

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In my opinion, the aforesaid findings of the Tribunal do not suffer from any infirmity. No evidence is led by the appellant to prove contributory negligence even though the burden of proof to establish contributory negligence lies on it. Therefore, there is no reason to interfere with the above findings of the Tribunal. The legal position in this behalf is now well-settled. At the risk of repetition, I am tempted to quote the following observations of the Apex Court in Jiju Kuruvila and others v. Kunjujamma Mohan and others,

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(2013) 9 SCC 166 :

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“20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.”

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It is, however, the contention of Mr. K. Bhattacharjee, the learned counsel for the appellant, that the Tribunal grossly erred in awarding compensation to the respondent No. 1, father of the deceased, as he was not his dependent and that such award is contrary to the law laid down by the

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Apex Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 . In my opinion, there is force in the contention of the learned counsel for the appellant. In Sara Varma case (supra) , the Apex Court held:

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“ 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

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32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to

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one-third and contribution to the family will be taken as two-

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third.”

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(Underlined for emphasis)

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As there is no evidence to show that the respondent No. 1 was a dependent of the deceased, his share in the compensation amount so awarded, i.e. ₹17,97,894.25/- (₹71,91,577 ÷ 4 = ₹17,97,894.25/-) is liable to deducted. In other words, it is hereby declared that the respondent No. 1 is not entitled to any compensation. As the respondent No. 2, 3 and 4 are the dependants of the deceased, they are entitled to a compensation of ₹53,93,682.75p, which shall be divided among themselves in equal shares. The question to be determined now is whether the principle of „pay and recover‟ will apply in this case.

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The result of the foregoing discussion is that this appeal partly succeeds. The appellant shall now deposit a sum of ₹53,93,682.75p. together with interest @ 7% per annum from the date of the claim petition within two months from the date of receipt of this judgment for payment to the claimantrespondents No. 2, 3 and 4 in the manner indicated by the Tribunal. It is seen from the note of the Registry that sum of ₹71,91,577/- has been deposited by the appellant with the Registry. If that so, any amount in excess of the awarded amount together with the interest accrued thereon, shall be refunded to the appellant without any delay. Transmit the L.C. record forthwith.

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MAC Appeal No. 101 of 2014.

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This appeal is directed against the judgment dated 24-7-2014 passed by the Motor Accident Claims Tribunal, West Tripura in TS (MAC) No. 118 of 2013 awarding a compensation of ₹2,66,065/- to the claimant-respondent No. 1. The claimant–respondent No. 3 herein is the wife of the deceased, and filed the claim petition claiming a compensation of ₹27,71,950/-. As the facts and circumstances leading to the vehicular accident are already narrated in the foregoing appeal, it is not necessary to repeat them. Suffice it to state that she sustained serious injuries whereupon she was referred to SSKM Hospital,

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Kolkata for better treatment, but due to non-availability of bed, she was compelled to take treatment at Apollo Gleneagles Hospital, Kolkata from 29-122012 to 8-1-2013. She underwent four operations on her head, face and nose at the cost of ₹5,21,950/-. She claimed a compensation of ₹27,71,950/-. The claim petition was contested by the owner of the vehicle as well as the appellant-insurer, who denied that the accident occurred due to the rash and negligent driving of the vehicle and that they have no liability whatsoever for the compensation so claimed. The Tribunal at the conclusion of the trial awarded a compensation of ₹2,66,065/- together with interest @ 9% per annum in favour of the claimant respondent. Aggrieved by this, this appeal has been preferred by the insurer.

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In so far as the contention of Mr. K. Bhattacharjee, the learned counsel for the appellant, with respect to contributory negligence on the part of the deceased, is concerned, in the light of my above findings, I need not be detained by this issue. As for the quantum of compensation awarded by the Tribunal, on carefully going through the findings of the Tribunal, I do not find any reason to disagree with Tribunal in this behalf, particularly, when she was admittedly receiving treatment including surgeries for four times at a hospital like Apollo Gleneagles. It is, however, with respect to the contention of the learned counsel for the appellant about the non-liability of the insurer to satisfy any award in the case of gratuitous passengers that the issue requires deeper examination. The claimant-respondent was admittedly a pillion rider together with her daughter in the ill-fated scooter driven by her deceased husband. The question to be considered is whether the insurer is liable at all to satisfy the award. In my opinion, the law in this field is no longer res integra . If any authority is needed in this behalf, I may refer to the decision of the Apex Court in General Manager, United Insurance Co. Ltd. v. M. Laxmi and others, (2009) 17 SCC 301 . That was a case where the deceased was a pillion driver, who died in a vehicular accident. The Apex Court held:

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“9. In New India Assurance Co. Ltd. v. Asha Rani¹ it has been noted as follows:

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“ 25 . Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of „public service vehicle‟. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen‟s Compensation Act. It does not speak of any passenger in a „goods carriage‟.

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26 . In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words „any person‟ must also be attributed having regard to the context in which they have been used i.e. „a third party‟. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.

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27 . Furthermore, sub-clause ( i ) of clause ( b ) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause ( ii ) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.”

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1 (2003) 2 SCC 223

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10. In United India Insurance Co. Ltd. v. Tilak Singh² it has been noted as follows:

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“ 21 . In our view, although the observations made in Asha Rani case (supra) were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.”

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11. In view of what has been stated by this Court in Asha Rani (supra) and Tilak Singh (supra) cases, the order of the High Court is clearly unsustainable and is set aside and that of MACT is restored.”

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As the claimant-respondent No. 1 is a pillion rider and is, therefore, a gratuitous passenger, the statutory insurance policy did not cover the risk of death or bodily injury to a gratuitous passenger. Be that as it may, the question remains to be decided is whether the principle of “pay and recover” is applicable to the facts of this case. As the decision of this Court on this aspect of the matter is likely to have wide ramifications in this State, I may refer to the latest position of the law as enunciated by the Apex Court in Manuara

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Khatun and others v. Rajesh Kr. Singh and others, (2017) 4 SCC 796 .

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Paras 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the report are important, and are extensively reproduced below in extenso:

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“ 13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle, i.e. (Respondent No.

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2 (2006) 4 SCC 404

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to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent No.1 in the same proceedings.

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14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject matter of several decisions of this Court rendered by three-Judge Bench and two -Judge Bench in past viz. National Insurance Co. Ltd. vs. Baljit Kaur, (2004) 2 SCC 1, National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517, National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246, National Insurance Co. v. Roshan Lal, (2017) 4 SCC 803 and National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 .

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15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment (2011) SCC Online Ker 3791 of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".

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16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under: ( Saju P. Paul Case 4 SCC pp. 52 & 55)

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" 20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).

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The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [ National Insurance Co. Ltd. vs. Saju P. Paul, (2013) 2 SCC 41 ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the

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Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao (2004) 8 SCC 517 .”

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17. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul case (2013) 2 SCC 41 also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings.

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18. The learned counsel for Respondent 3 (United India Insurance Co. Ltd.), however, contended that the facts of the case at hand are not identical to the one involved in Saju P. Paul (supra) and hence the law laid down therein cannot be applied to the facts of the case at hand. The learned counsel pointed out that firstly, the awarded compensation in this case is quite substantial and secondly, it is not yet paid to the claimants. The learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the Insurance Company.

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19. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this

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case and the one involved in Saju P. Paul Case (supra) . Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Paul Case (supra) , it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Paul case (supra). That apart, the learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.

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20. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard.

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21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul case ( supra ).

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What has emerged out of the paragraphs extracted above is that the mere pendency of the issue concerning the principle of “pay and recover” before the

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larger Bench of the Apex Court does not stand in the way of this Court in applying the said principle to the facts of this case. Even though this is a case of non-liability of the appellant to satisfy the award since the claimantrespondent is found to be a gratuitous passenger, the appellant is required to pay the compensation so awarded and thereafter recover the same from the owner of the vehicle, i.e. respondent No. 2 (Sri Biswajit Debbarma) in accordance with the procedure laid down in Challa Upendra Rao case (supra) .

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Therefore, this appeal is allowed. However, the appellant-insurer is directed to satisfy the award amounting to ₹2,66,065/- with the interest at the rate of 9% per annum for payment to the respondent-claimants within a period of two months from the date of receipt of this judgment. The mode of disbursement of the compensation with the interest accrued thereon shall be in accordance with the direction of the Tribunal. Needless to say, any amount already paid or deposited by the appellant shall be adjusted against this modified award. Transmit the LC record forthwith.

¶102

MAC Appeal No. 104 of 2014

¶103

In this connected appeal, the claimant-respondent is a minor and the daughter of the deceased. She sustained injuries along with her mother in the same vehicular accident. The Tribunal has awarded a sum of ₹3,11,270/together with interest @ 9% per annum from the date of the claim petition against the appellant-insurer, who, aggrieved thereby, preferred this appeal. As in the previous case, the claimant-respondent No. 1 and her mother (the claimant-respondent No. 1 in the foregoing appeal) are admittedly pillion riders of the ill-fated scooter driven by the deceased and, therefore, a gratuitous passenger. As in the foregoing case, the statutory insurance policy did not over a gratuitous passenger like the claimant-respondent No. 1, who was a pillion rider at the time of the accident. The appellant-insurer is, therefore, not liable to satisfy the award. It is rather the respondent No. 2

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(owner of the offending vehicle), who is liable to satisfy the award. Even though this is a case of non-liability of the appellant to satisfy the award as the claimant-respondent is found to be a gratuitous passenger, the appellant is required to pay the compensation so awarded and thereafter recover the same from the owner of the vehicle, i.e. respondent No. 2 (Sri Biswajit Debbarma) in accordance with the procedure laid down in Challa Upendra Rao case (supra) .

¶106

Resultantly, the appellant-insurer is directed to deposit with this Registry a sum of ₹3,11,270/- together with interest at the rate of 9% per annum from the date of the claim petition within two months from the date of receipt of this judgment for payment to the respondent No. 1 (Ms. Adhyeta Sutradhar). Any amount already deposited or paid to the claimantrespondents shall be adjusted accordingly. The mode of disbursal to the claimant-respondents shall be made in accordance with the directions of the Tribunal. Transmit the L.C. records forthwith.

¶107

A copy of the judgment be supplied to the learned counsel for the appellant-insurer.

¶108

CHIEF JUSTICE

¶109

MAC APP NO.101 OF 2014 MAC APP NO.102 OF 2014 MAC APP NO.104 OF 2014 Page 17 of 17

Oriental Ins. Co. Ltd. v. Smt.Tandra Paul Sutradhar and Ors.

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Oriental Ins. Co. Ltd. v. Smt.Tandra Paul Sutradhar and Ors.

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