In all these appeals, the contention raised by the learned counsel for the appellant is that the claimants are passengers in the goods vehicle.
2. The insurance company has filed these appeals challenging the award of the Tribunal which by its order dated 30.3.2007 in M.C.O.P.Nos. 13 to 24, 28 and 29 of 2006 directed the appellant insurance company to pay and recover the award amount from the owner of the vehicle.
3. In all these cases, the accident happened on 25.12.2005. Several persons travelled in a lorry which capsized. In that accident, they suffered injuries and filed claims for compensation. Even in the claim petitions, they have admitted that they travelled in the vehicle bearing registration No. TN10J 5991 which is a goods vehicle.
4. The Tribunal, in all these cases, after determining the compensation, placing reliance upon the decision reported in Oriental Insurance Company Limited, Chennai Vs. - Dhanapakkiam ( 2007) (1) M.L.J. 65) directed the appellant to pay and recover the same from the owner of the vehicle.
5. In these appeals, appellant contended that when the admitted case of the claimants is that they have travelled as gratuitous passengers in the goods vehicle and the finding of the Tribunal is also the same, the question of pay and recover does not arise when there is a breach of condition of policy.
6. In all the appeals, notice of admission was ordered on 7.12.2007 and the first respondent in all the appeals was served on 24.12.2007. Since the second respondent herein, the first respondent before the Tribunal, in all the cases remained ex parte before the Tribunal, an endorsement is made in all the appeal grounds stating that notice to second respondent may be dispensed with. Hence, notice to second respondent in all the cases is dispensed with by order dated 18.2.2009. On behalf of the first respondent, no vakalat has been filed till date. When these matters were listed on 3.2.2009, there was no representation on behalf of the first respondent in each case. Hence, this matter was adjourned to 12.2.2009. On 12.2.2009 also, there was no representation on behalf of the first respondent. The matter was adjourned to 17.2.2009. On 17.2.2009 also there was no representation on behalf of the first respondent. Thereafter, the cases were adjourned and listed on 18.2.2009, 26.2.2009, 27.2.2009, 3.3.2009, 6.3.2009 and 16.3.2009. As a last chance, these matters are listed today. Today also there is no representation on behalf of the respondent claimants. The facts are not in dispute. The injured claimants are gratuitous passengers in a goods vehicle. The law is also settled as set out hereunder. Therefore, the appeals are taken up for disposal on merits.
7. In a case of this nature, the issue relating to pay and recover has been considered by Courts and Tribunal from time to time and applied depending on facts and circumstances of the case. A Full Bench reference was made in view of the doubts raised with regard to the applicability of the above principle pursuant to the Division Bench decision of this Court in United India Insurance Company Limited, Tiruvannamalai and another vs. - Selvam and others [2006(1) MLJ 154]. The question framed by the Full Bench in Branch Manager, United India Insurance Co. Ltd., - vs. - Nagammal reported in 2009(1) CTC 1 = 2009(1) L.W. 702, is as follows:-
"The precise question to be answered is whether the Insurer can be directed to pay compensation to the claimant in a case where the deceased and/or the injured was travelling as a gratuitous passenger in a goods vehicle and recover the same thereafter from the owner of such goods vehicle."
8. The Full Bench of this Court answered the reference in paragraph 31 of the judgment as follows:-
"31. Thus from an analysis of the statutory provisions as explained by the Supreme Court in various decisions rendered from time to time, the following picture emerges:
"(i) The Insurance Policy is required to cover the liability envisaged under Section 147, but wider risk can always be undertaken.
(ii)
Section 149 envisages the defences which are open to the Insurance Company. Where the Insurance Company is not successful in its defence, obviously it is required to satisfy the decree and the award. Where it is successful in its defence, it may yet be required to pay the amount to the claimant and thereafter recover the same from the owner under such circumstance envisaged and enumerated in
Section 149(4) and
Section 149(5).(iii) Under Section 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.
(iv) Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of "pay and recover", as statutorily recognised in Section 149(4) and Section 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner.
(v) Where, by relying upon the decision of the Supreme Court in Satpal Singh's case, either expressly or even by implication, there has been a direction by the Trial Court to the Insurance Company to pay, the Appellate Court is obviously required to consider as to whether such direction should be set aside in its entirety and the liability should be fastened only on the driver and the owner or whether the Insurance Company should be directed to comply with the direction regarding payment to the claimant and recover thereafter from the owner.
(vi) No such direction can be issued by any Trial Court to the Insurance Company to pay and recover relating to liability in respect of a passenger travelling in a goods vehicle after the decision in Baljit Kaur's case merely because the date of accident was before such decision. The date of accident is immaterial. Since the law has been specifically clarified, no Trial Court is expected to decide contrary to such decision.
(vii) Where, however, the matter has already been decided by the Trial Court before the decision in Baljit Kaur's case, it would be in the discretion of the Appellate Court, depending upon the facts and circumstances of the case, whether the doctrine of "pay and recover" should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be."
9. There is no dispute in this case that the injured persons were travelling in a goods vehicle as gratuitous passengers and they were not entitled to do so. Further, the policy of insurance issued in respect of the vehicle does not cover the case of claim by the injured passengers, who travelled in a goods vehicle. In view of the decision of the Supreme Court referred to by the Full Bench of this court, which held that the decision of the Division Bench of this Court in Selvam's Case (cited supra) has not laid down the correct law,the order of the Tribunal directing the appellant insurance company to pay the compensation to the claimants and recover the same from the owner of the goods vehicle does not arise in this case. The appellant insurance company is under no liability to pay the claimants. The order of the Tribunal directing the appellant insurance company to pay the claimants and recover the same from the owner of the vehicle cannot therefore, be sustained in law.
10. With regard to quantum of compensation including interest granted by the Tribunal, there is no dispute and the same is confirmed.
11. In the result, all the Civil Miscellaneous Appeals are allowed as follows:-
(i) The order of the Tribunal directing the appellant insurance company to pay the compensation to claimant in all the appeals and recover the same from the owner of the vehicle, is set aside.
(ii) Since there is no dispute with regard to quantum of compensation, the same is confirmed.
(iii) The claimant in all the appeals are entitled to recover the award amount as ordered by the Tribunal from the owner of the vehicle in accordance with law.
(iv) The appellant insurance company is entitled to seek refund of the amount already deposited with accrued interest if any, pursuant to the order of this court.
(v) There will be no order as to costs.
(vi) Consequently, connected miscellaneous petition in all the appeals are closed.
ra/ts To The Motor Accidents Claims Tribunal, (Subordinate Court) Maduranthagam