Anu Bhanvara etc. vs Iffco Tokio General Insurance Company Limited and Others

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.6231­6232 OF 2019 [ARISING OUT OF S.L.P. [C] Nos.19090­19092 OF 2019] [@ DIARY NO. 8720 OF 2018]

ANU BHANVARA ETC. …..APPELLANTS VERSUS

IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED & ORS. …RESPONDENTS

JUDGMENT

Vineet Saran, J.

Leave granted.

2. These appeals are against the judgment and order dated

05.04.2016 passed by the High Court of Punjab and Haryana at

Chandigarh relating to the claims for compensation in respect of

injuries sustained by two gratuitous passengers in a jeep (goods

vehicle). The Motor Accidents Claims Tribunal (for short “Tribunal”)

had dismissed the claim petitions on the ground that the negligence Signature Not Verified

of the driver was not proved.

Digitally signed by INDU MARWAH Date: 2019.08.10

However, the High Court, after 12:34:23 IST Reason:

holding that the accident was as a result of composite negligence of 2

the driver of the jeep and the other offending vehicle, held that the

owner and driver of the jeep would be liable for payment of

compensation and exonerated the insurer of the jeep, on the ground

that the vehicle was insured as a goods vehicle and the claimants,

who had sustained injuries, were gratuitous passengers in the

goods vehicle (Jeep) and would thus not be covered under the

insurance policy as they were not travelling as owner of the goods.

The insurance of the jeep, as a goods vehicle, has been found to be

valid.

3. In F.A.O. No. 5460 of 2012 before the High Court, the

case was of one Anu Bhanvara, aged about fifteen years at the time

of the accident, who, because of injuries sustained, had to have

amputation of wrist resulting in 55% disability. The Tribunal

assessed total compensation of Rs.5,26,000/­, which was after

assessing disability compensation of 55% at Rs.50,000/­, loss of

prospect of marriage at Rs.1,00,000/­ and cost of artificial limb at

Rs.3,76,000/­. The High Court enhanced the compensation to

Rs.6,41,750/­, after awarding additional compensation for medical

expenses, pain and suffering, income loss etc. in addition to what

was assessed by the Tribunal.

3

4. In the other F.A.O. No. 5461 of 2012 before the High

Court, the case was of one Rohit Kumar, aged about eighteen years

at the time of accident, who, because of the injuries sustained in

the accident, had to have his arm amputated below the elbow

resulting in 70% disability. The Tribunal assessed total

compensation of Rs.5,78,000/­, which was after assessing the

disability compensation of 70% at Rs.50,000/­, income assessed at

Rs.54,000/­ and cost of artificial limb at Rs.3,90,000/­. The High

Court enhanced the compensation to Rs.7,36,000/­, after awarding

additional compensation for medical expenses, pain and suffering,

income loss etc. in addition to what was assessed by the Tribunal.

5. Challenging the said judgments of the High Court, these

appeals have been filed by the claimants for enhancement of

compensation and also to direct payment of compensation by the

insurer.

6. We have heard Mr. S. L. Gupta, learned counsel for the

appellants and Ms. Shanta Devi Raman, learned counsel for the

respondent no.1­insurer and have perused the material on record.

7. The questions now to be considered by this Court are

two­fold; firstly, whether the amount of compensation awarded was

adequate or not; and secondly, whether the payment of 4

compensation is to be made jointly by the owner and driver of the

vehicle, or by the insurer which could thereafter be recovered by the

insurer from the owner and driver.

8. Having regard to the respective age of the two claimants

and keeping in view that compensation has been awarded on all

requisite heads by the High Court, we are of the opinion that no

interference is called with regard to the quantum of compensation

awarded to the two claimants.

9. The next question is as to which of the respondents, that

is the owner and driver, or the insurer of the vehicle, would be

liable for payment of such compensation. As regard the liability for

payment of compensation, it has been contended by the learned

counsel for the appellants that since the vehicle was admittedly

insured with the respondent no.1­insurance company, the principle

of pay and recover would be invoked even in case of a gratuitous

passenger in a goods vehicle. The insurance company should thus

be made liable for the payment of compensation to the appellants

and in turn they would have the right to realise/recover the same

from the owner and driver of the vehicle. In support of his

submission, learned counsel for the appellants has relied on the

following decisions of this Court, namely, Manuara Khatoon v. 5

Rajesh Kumar Singh (2017) 4 SCC 796, Puttappa v. Rama Naik (Civil

Appeal No.4397 of 2016, disposed of on 2 nd April, 2018); Manager,

National Insurance Co. Ltd. v. Saju P. Paul (2013) 2 SCC 41; New

India Assurance Co. Ltd. v. Vimal Devi (Civil Appeal Nos.1578­1579

of 2004, disposed of on 5th October, 2010); National Insurance Co.

Ltd. v. Challs Upendra Rao (2004) 8 SCC 517; New India Assurance

Co. Ltd. v. C. M. Jaya (2002) 2 SCC 278; Amrit Lal Sood v.

Kaushalya Devi Thapar (1998) 3 SCC 744.

10. Per contra, learned counsel for the respondent­insurance

company has contended that since the claimants were gratuitous

passengers in a goods vehicle, in which case the liability for

payment of compensation for death or body injury to the

passengers of such goods vehicle would not be covered, hence the

principle of pay and recover would not apply. It has thus been

contended that the order of the High Court is perfectly justified in

law and calls for no interference by this Court. In support of her

submission, learned counsel has relied on following decisions,

namely, New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC

223; National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1;

National Insurance Co. Ltd. v. Kaushalya Devi (2008) 8 SCC 246; 6 National Insurance Co. Ltd. v. Rattani (2009) 2 SCC 75; National

Insurance Co. Ltd. v. Prema Devi (2008) 5 SCC 403; Bharat AXA

General Insurance Co. Ltd. v. Adani MANU/TN/6503/2018; Bajaj

Allianz General Insurance Co. Ltd. v. Lal Singh (2015) SCC Online

Del 7508.

11. We have heard learned counsel for the parties and

perused the record as well as the various decisions cited by learned

counsel for the parties. The insurance of the vehicle, though as a

goods vehicle, is not disputed by the parties. The claimants in the

present case are young children who have suffered permanent

disability on account of the injuries sustained in the accident.

Thus, keeping in view the peculiar facts and circumstances of this

case, we are of the considered view that the principle of “pay and

recover” should be directed to be invoked in the present case.

12. Accordingly, these appeals are disposed of with the

direction that the respondent no.1 – insurance company shall be

liable to pay the awarded compensation to the claimants in both the

appeals. However, respondent no.1 – insurance company shall

have the right to realize the said amount of compensation from the 7

respondents no. 2 and 3 (driver and owner of the vehicle) in

accordance with law.

13. There shall be no order as to costs.

………………………..J. [R. F. Nariman]

………………….…….J. [Vineet Saran] New Delhi;

August 9, 2019.