MANUARA KHATUN & ORS.versusRAJESH KR. SINGH & ORS.

                        [2017] l S.C.R. 789



                  MANUARA KHATUN & ORS.                                  A
                                 v.
                   RAJESH KR. SINGH & ORS.
                  (Civil Appeal No. 3047of2017)
                       FEBRUARY 21, 2017                                 B

[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.]
       Motor Vehicles Act, 1988 - Motor accident -
Compensation - Victim travelling as gratuitous passenger in the
offending vehicle which was found involved in causing accident
due to negligence of its driver - Liability of Insurance Company of
                                                                         c
the offending vehicle - Held: Claimants are entitled for an order
against the Insurer of the offending vehicle to pay the awarded sum
to the claimants and then to recover the said amount from the insured,
owner of the ·offending vehicle in the same proceedings.
                                                                         D
      Allowing the appeals, the Court
      HELD: 1.1 It cannot be said that the law laid down in *Saju
P. Paul's Case cannot be applied to the facts of th.e case at hand.
Firstly, marked similarity is found .in the facts of this case and the
one involved in *Saju P. Paul's Case. Secondly, merely because
                                                                         E
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's
Case, 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       F
Bench as would be clear from the *Saju P. Paul's case [Para 20]
[796-C-E]
       1.2 There is no good ground to take a different view than
t.he one consistently being taken by this Court in all previous
decisions, in this regard. [Para 21] [796-F]                             G
      1.3 The direction to the Insurance co·mpany-respondent
No. 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 the Insurance Company-respondent
No.3 to first pay the awarded sum to the appellants (claimants)          H
                               789
790            SUPREME COURT REPORTS                      [201 7] 1 S.C.R.


A     and then to recover the paid awarded sum from the owner of the
      offending vehicle respondent No.1 in execution proceedings
      arising in this very case as per the law laid down in *Saju P. Paul's
      case. [Para 22] [796-G]
            1.4 The impugned order is modified to the extent that
B     respondent No. 3-Insurance Company is directed to pay the
      awarded sum to the appellants (claimants). Thereafter, respondent
      No. 3 would be entitled to recover the entire paid awarded sum
      from the owner (insured) of the offending Vehicle-respondent No.1
      in these very proceedings by filing execution application against
      the insured. [Para 23] [797-A-B]
c
            Manage1; National Insurance Company Limited v. Saju
            P. Paul & Anr. (2013) 2 SCC 41 : [2013] 2 SCR 1 -
            relied on.
            Oriental Insurance Co. Ltd v. Nanjappan & Ors. (2004)
            13 SCC 224 : [2004] 2 SCR 365; Bhagyalakshmi &
D
            Ors. v. United Insurance Company Ltd & Anr. (2009)
            7 SCC 148 : [2009] 7 SCR 1031; National Insurance
            Co. Ltd vs. Baljit Kaur & Ors. (2004) 2 SCC 1 : [2004]
            1 SCR 274; National Insurance Co. Ltd. v. Challa
            Upendra Rao & Ors. (2004) 8 SCC 517 : [2004] 4
E           Suppl. SCR 587; National flisurance Co. Ltd. v.
            Kausha!aya Devi & Ors. (2008) 8 SCC 246 : [2008] 8
            SCR 500; National Insurance Co. Ltd v. Roshan Lal
            [Order dated 19.1.2007 in SLP (C) No. 5699 of 2006];
            National Insurance Co. Ltd. vs. Parvathneni & Anr.
            (2009) 8 sec 785 - referred to.
F
                             Case Law Reference
      (2004] 2 SCR 365                referred to            Para 11
      [2009] 7 SCR 1031               referred to            Para 11
      [2004] 1 SCR 274                referred to            Para 15
G
      [2004] 4 Suppl. SCR 587         referred to            Para 15
      [2008] 8 SCR 500                referred to            Para 15
      (2009) 8 sec 785                referred to             Para 15

H     [2013] 2 SCR 1                  relied on               Paras 20, 22
 MANUARA KHATUN & ORS. v. RAJESH KR. SINGH & ORS.                          791



      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3047                   A
of20I 7.
      From the Judgment and Order dated 22.06.2012 of the High Court
at Gauhati in MAC Appeal No. 7 of 2009
                                WITH
      C. A. No. 3065 of20l 7.                                               B

      M. L. Lahofy, Paban K. Sharma, Himanshu Shekhar, Advs. for
the Appellant.
      Ravi Bakshi, Nitin Kumar Thakur, S. L. Gupta, Kuldeep Singh
Tomar, Varinder Kumar Shanna, R. K. Gupta, D. P. Singh Yadav,
B. S. Gautam, Ms. Shalu Shanna, Ailvs. for the Respondent.
                                                                            c
      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J. l. Leave granted.
       2. These appeals are filed against the common final judgment and
order dated 22.06.20I2 passed by the High Court ofGauhati at Guwahati       D
in MACA Nos. 7 and 8 of2009 whereby the High Court dismissed the
appeals filed by the appellants herein for enhancement of the
compensation amount awarded by the Motor Accident Claims Tribunal,
Nagaon by order dated 05.09.2008 in MAC Case Nos. 653 and 652 of
2001.                                                                       E
      3. We herein set out the facts, in brief, to appreciate the issue
involved in these appeals.
        4. On 03.07.2001, Ismail Hussain, husband of Manuara Khatun
and Nirod Prasad Mohanty, husband ofMamoni Saikia Mohanty along
with some other passengers were proceeding towards Guwahati from            F
Nagoan in Tata Sumo bearing Registration No. AR-09-3997, when they
arrived near Jorabat, there was a head-on-collusion between the Tata
Sumo and a Truck bearing Registration No. AS-Ol-H-2598 coming from
the opposite direction as a result of which Ismail Hussain and Nirod.
Prasad Mohanty died on the spot and some other passengers sustained         G
injuries.
       5. Manuara Khatun, wife of the Ismail Hussain and her 5 minor
children filed Claim petition bearing MAC Case No. 653 of200 l claiming
total compensation ofRs.55,20,400/- and Mamoni Saikia Mohanty, wife
ofNirod Prasad Mohanty and her 3 minor children preferred claim petition
                                                                            H
792            SUPREME COURT REPORTS                          (2017] I S.C.R.


A     bearing MAC No. 652 of 200 I claiming total compensation of
      Rs.54,62,500/- before the Motor A£cident Claims Tribunal, Nagaon
      agaiqst Rajesh Kumar Singh, owner of the Tata Sumo( respondent No. I),
      Bhadra Kt. Das, owner of the Truck( respondent No.2), the insurer of
      the Tata Sumo-United India Insurance Co. Ltd.(respondent No.3) and
      New India Assurance Company Ltd., Insurer of the Truck(respondent
B
      No.4). The claim petitions were contested only by the Insurance
      Companies. So far as the owners of the vehicles were concerned, they
      remained ex pane.
             6. The Tribunal, vide award dated 05.08.2008, partly allowed both
      the claim petitions and awarded a sum ofRs.24,89,500/- to Manuara
c     Khatun, wife of Ismail Khatun and Rs.24,09,500/- to Mamoni Saikia
      Mohanty, wife of Nirod Prasad Mohanty with interest @ 7.5% p.a.
      from the date of filing ofcase tillpayment. The Tribunal held that Tata
      Sumo was a private car driven by the driver in a rash and negligent
      manner and at a high speed, which resulted in the accident. It was also
D     held that the driver of the Truck was not negligent in driving the Truck.
      The Tribunal further held that all the passengers in¢1uding the two
      deceased were traveling in Tata Sumo for hire and hence they were
      held to be "gratuitous passengers". It was held that due to this reason,
      United India Insurance Company Ltd., the insurer of Tata Sumo( offending
      vehicle) was not liable. Accordingly, the Insurance Company was
E     exonerated from the liability and the award was passed only against the
      owner of Tata Sumo (respondent No. I) in both the claim cases. So far
      as the owner of the Truck(responaent No.2) and the New India
      Assurance Co. Ltd.-Insurer of the Truck(respondent No.4) were
      concerned, both were held not liable in any manner because, as mentioned
F     above, the driver of the Truck was not found negligent in driving the
      Truck.
            7. Dissatisfied with the aw!lrd, appeals bearing MAC Appeal No. 7
      of2009 and MAC Appeal No. 8 of2009 under Section 173 of the Motor
      Vehicle Act, 1988 (hereinafter referred to as-.'ihe Act") were filed before
G     the High Court by the claimants for enhancement of the compensation
      amounts awarded by the Tribunal. The other ground raised before the
      High Court was that it was the liability of the Insurance Company of the
      offending vehicle to compensate the claimants jointly and severally with
      the owner of the Tata Sumo and in any event, the direction to pay the
      compensation by the insurer of offending ve~icle and then to recover
H
 MANUARA KHATUN & ORS. v. RAJESH KR. SINGH & ORS.                             793
          [ABHAY MANOHAR SAPRE, J.]

from its insured should have been passed against the In surer( respondent     A
No.3).
       8. By impugned judgment, the High Court dismissed the appeals
filed by the claimants and held that the insurer was not liable because
the passengers or occupants were being carried in a private vehicle as
"gratuitous passengers".                                                      B
      9. Aggrieved by the said judgment, the claimants have filed these
appeals by way of special leave petitions before this Court.
      10. Heard Mr. M.L. Lahoty, learned counsel for the appellants,
Mr. Ravi Bakshi, learned counsel for respondent No.3 and Mr. S.L.
Gupta, learned counsel for respondent No.4.                                    c
       11. Learned counsel for the appellants while assailing the impugned
order argued only one point. According to him, both the Courts below
erred in not applying the principle of "pay and recover" against the
United India Insurance Company Ltd. (insurer of the offending vehicle-
Tata Sumo)-Respondent No. 3 herein. Ii was his submission that when            D
admittedly the driver of the Tata Sumo was ~1eld negligent in his driving,
which caused the accident, the insurer of the offending vehicle-respondent
No. 3 should have been made liable to pay the awarded sum or in any
event, according to learned counsel, a direction to pay and recover the
awarded sum ought to have been issued against the Insurer of the               E
offending vehicle. Learned counsel placed reliance on the judgments of
this 'court in Oriental Insurance Co. Ltd. vs. Nanjappan & Ors.,
(2004) 13 SCC 224, Bhagyalakshmi & Ors. vs. United Insurance
Company Ltd. & Anr., (2009) 7 SCC 148 and Manager, National
Insurance Company Limited vs. Saju P. Paul & Anr., (2013) 2 SCC
41 in support of this submission.                                              F

       12. In reply, learned counsel for the respondents (Insurance
Companies) supported the impugned order and contended that no case
is made out to interfere in the impugned judgment. It was his submission
that once it is held and rightly that the Insurance Company is not liable
because the victims were travelling in the offending vehicle as "gratuitous    G
passengers'', there did not arise any occasion to pay the awarded sum to
the claimants by the Insurance Company and nor the principle "pay
and recover" could be applied against the Insurance Company in, such
circumstances thereby m~king them liable to pay the awarded sum to
the claimants.                ·.
                                                                               H
794             SUPREME COURT REPORTS                            [2017] I S.C.R.



A             13. Having heard the learned counsel for ihe parties and on perusal
      of the record of the case, we find force in the submission of the
      learned counsel for the appellants (claimants).
              14. 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. 3) to pay the
B
      awarded sum to the appellants and then to recover the said amount from
      the insured (owner ofthe offending vehicle-Tata Sumo)-respondent No. I
      in the same proceedings.
              15. The aforesaid question, in our opinion, remains no more res
      integra. As we notice, it was subject matter of several decisions of this
c     Court rendered by three Judge Bench and two Judge Bench in past,
      viz., National Insurance Co. Ltd. vs. Baljit Kaur & Ors., (2004) 2
      SCC I, National Insurance Co. Ltd. vs. Challa Upendra Rao &
      Ors., (2004) 8 SCC 517, Nationallnsurance Co. Ltd. vs. Kaushalaya
      Devi & Ors., (2008) 8 SCC 246, National Insurance Co. Ltd. vs.
D     Roshan Lal, [Order dated 19.1.2007 in SLP© No. 5699 of2006], and
      National Insurance Co. Ltd. vs. Parvathneni & Anr., (2009) 8 SCC
      785.
              16. This question also fell for consideration recently in Manager,
      National Insurance Company Limited vs. Saju P. Paul & Anr.,
      (supra) wherein this Court took note of entire previous case law on the
E     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 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
 F    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".
G
           17. Justice R.M. I.:odha (as His Lordship then was and later
      became CJ!) speaking for the Bench held in paras 20 and 26 as under:
             "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
 H           satisfy the awarded amount in favour of the claimant
MANUARA KHATUN & ORS. v. RAJESH KR. SINGH & ORS.                             795
         [ABHAY MANOHAR SAPRE, J.]

      and recover the same from the owner of the vehicle                     A
      (Respondent 2 herein).
      26. 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                       B
      uot 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                     c
      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 Conrt                     D
      passed on 1-8-2011 (National Insurance Co. Ltd. vs.
      Saju P. Paul, SLP© No. 20127 of 2011 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                     E
       by the 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                        F
       owner shall be made by following the procedure as
       laid down by this Court in Challa Upendra
       Rao(supra)."
       18. 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    G
vehicle and it was for this reason, the insurance companies were
exonerated. In Saju P. Paul's case (supra) 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 an·d
then to recover the same from the Insured in the same proceedings.            H
796             SUPREME COURT REPORTS                           [2017] I S.C.R.



A             19. Learned counsel for respondent No. 3 (United India Insurance
      Company Ltd.), however, contended that the facts of the case at hand
      ari:.not identical to the one involved in the case ofSaju P. Paul (supra)
      and hence the law laid down therein cannot be applied to the facts of the
      case at hand. Learned counsel pointed out that firstly, the awarded
      compensation in this case is quite substantial and secondly, it is not yet
B
      paid to the claimants. Learned counsel also ·submitted that since the
      question involved herein is referred to a larger Bench and hence this
      Court sho11ld not give such directions, as prayed by the appellants, against
      the Insurance Company.
             20. We find no merit in any of the submissions. Firstly, as mentioned
c     above, we find marked similarity in the facts of this case and the one
      involved in Sa.in P. Paul's 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 Sa.iu P. Paul's Case (supra), it cannot
      be a ground to deny the claimants the relief claimed in these appeals.
D     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 Sa.iu P. Paul's case (supra). That apart,
      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
E     issue undecided. It is for this reason also, the argument does not survive
      any more.
             21 . 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.
 F
              22. In view of the foregoing discussion, we are of the view that
      the direction to United India Insurance Company (respondent No. 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 Company-respondent No.3) to
 G    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 No. I in execution proceedings arising in this very
      case as per the law laid down in Para 26 of Sa.in P. Paul's case quoted
      supra.
H
 MANUARA KHATUN & ORS. v. RAJESH KR. SINGH & ORS.                            797
          [ABHAY MANOHAR SAPRE, J.]

      23. Accordingly, the appeals succeed and are allowed. Impugned         A
order is modified to the extent that respondent No. 3-United India
Insurance Company Ltd. is accordingly directed to pay the awarded
sum to the appellants (claimants). Thereafter respondent No. 3 - United
India Insurance Company Ltd. would be entitled to Tecover the entire
paid awarded sum from the owner (insured) of the offending Vehicle
                                                                             B
(Tata Sumo )-respondent No. I in .these very proceediags by filing
execution application against the insured.


Nidhi Jain                                                Appeals allowed.