The court emphasized the importance of the facts of each case in exercising discretion to pass the order of 'pay and recover' and highlighted the need to adopt a beneficent rule of construction in interpreting social welfare legislation.

JUDGMENT

Shrikant D. Kulkarni, J. - The order of 'pay and recover' passed in M.a.C.P. No. 168 of 2007 by the Member, M.a.C.T. Shahada is challenged by the United India Insurance Co. Ltd., Divisional Office Jalgaon, by way of present appeal.

2. Babu (since deceased) was travelling with other four passengers in ape Rickshaw, which was a goods vehicle. The said vehicle met with an accident on 25.11.2007, wherein Babu succumbed to injuries.

3. Respondent nos. 1 and 2 (original claimants) had filed claim under Section 166 of the Motor Vehicles act, 1988 on account of death of Babu and also prayed for interim compensation by taking aid of Section 140 of the Motor Vehicles act, 1988.

4. The Tribunal was pleased to grant interim compensation of Rs.50,000/- by passing order below exhibit 5 and directed to the owner of ape Rickshaw and the insurer to pay the interim compensation with interest @ 8% per annum fro the date of claim petition. The claim went on trial. The Member, M.a.C.T. after considering the rival pleadings of the parties, evidence on record and considering the defence raised by the insurance company / appellant was pleased to hold that although the insurance company was not liable to satisfy the claim, but shall pay the amount of compensation of Rs. 2,67,000/- inclusive of N.F.L. amount @ 8% per annum and recover the same from the owner of ape Rickshaw.

5. Feeling aggrieved by the impugned order of interim compensation and order of 'pay and recover', the appellant has knocked the doors of this Court, by preferring two appeals.

6. Heard Mr. S.V. Kulkarni, learned counsel for the appellant and Mr. P.C. Mayure, learned counsel for respondent nos. 1 and 2 / original claimants. Respondent no.3 / owner of the vehicle, remained absent though duly served with notices in both the appeals.

7. Mr. Kulkarni, learned counsel for the appellant / insurance company vehemently submitted that the deceased was travelling as a gratuitous passenger in ape Rickshaw, which was a goods vehicle when met with accidental death. The risk of the deceased is not covered by the insurance policy obtained by the owner of the vehicle. It is a case of breach of policy. The Tribunal has considered this defence. However, while passing the final order, directed to pay the compensation amount of Rs.2,67,000/- with interest to the original claimants and recover the same from the owner of the ape Rickshaw. The said order is bad in law. The insurance company is not liable to pay any amount of compensation when the risk of the deceased was not covered by the insurance policy of the vehicle. He, therefore, urged to set aside that clause of the operative order passed by the Tribunal. He also urged to set aside the order of interim compensation passed by the Tribunal fastening the liability on the insurance company to pay the same, when the risk is not covered by the insurance policy.

8. Mr. Kulkarni, learned counsel for the appellant / insurance company has placed reliance on the following stock of citations:

(i) United India Insurance Co. Ltd. Vs. Smt. Mandubai and others reported in 2019 (1) T.a.C. 547 (Bom.).

(ii) New India assurance Company Ltd. Vs. Lilabai Shrimant Missal and others reported in 2015 (1) Mh.L.J. 827.

(iii) National Insurance Co. Ltd. Vs. Rattani and Ors. Reported in aIR 2009 SC 1499.

(iv) National Insurance Co. Ltd. Vs. Prema Devi and Ors. Reported in 2008 aIR SCW 2013.

(v) Beliram Vs. Rajinder Kumar and another reported in aIR 2020 SC 739.

(vi) United India Insurance Company Ltd. Vs. Sukumarbai W/o Suryakant Nikam [First appeal No. 2021 of 2018 decided on 05.08.2019 (aurangabad Bench)].

9. Per contra, Mr. P.C. Mayure, learned counsel for respondent nos. 1 and 2 / original claimants supported the order of 'pay and recover' passed by the Tribunal. He submitted that the earning member of the family of the claimants has lost life in a motor vehicle accident. Having regard to the facts of the case, the Tribunal has passed the order of 'pay and recover'. He submitt