Liability of insurers for gratuitous passengers in goods vehicles established through the 'pay and recover' principle.

JUDGMENT :

SANJAY K. AGRAWAL, J.

1. The appellant Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 calling in question legality, validity and correctness of the impugned award dated 18-1-2022 passed by the 1^st Additional Motor Accident Claims Tribunal, Rajnandgaon in Claim Case No.183/2016, by which liability to pay a total compensation of Rs. 11,04,634/- has been fastened upon the Insurance Company.

2. It is the case of the appellant Insurance Company that the deceased was travelling in the goods vehicle which was insured for goods and the deceased was a gratuitous passenger, therefore, the Insurance Company is not responsible, which the Claims Tribunal has rejected and fastened liability upon the Insurance Company against which the present appeal has been preferred.

3. Mr. Ghanshyam Patel, learned counsel appearing for the appellant herein/Insurance Company, would submit that the Claims Tribunal is absolutely unjustified in fastening liability upon the Insurance Company, as the deceased was admittedly, travelling in the goods vehicle and as per the insurance policy Ex.D-1, only driver was covered and third party was also covered, however, the deceased was not covered which has also been proved by Mitesh Kumar (NAW-1), Assistant Law Officer, Chola Mandalam M.S. General Insurance Company Limited, who has clearly stated that only driver and their goods were insured and other than driver and third party was not insured. He would further submit that the deceased was the person sitting as gratuitous passenger in the said goods vehicle, as such, the Insurance Company is not responsible. Therefore, the impugned award is liable to be set aside and the appeal deserves to be allowed.

4. On the other hand, Mr. Rajendra Patel, learned counsel appearing on behalf of respondents No.5 & 6, would oppose the appeal and support the impugned award.

5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

6. Admittedly, the deceased was travelling in the goods vehicle and as per the insurance policy Ex.D-1, third party + owner / driver both were covered and no cleaner or other person was covered in the insurance policy which has been affirmed by Mitesh Kumar (NAW- 1), Assistant Law Officer of the appellant Insurance Company, who has clearly stated that the insurance policy only covers driver and third party for whom the insurance was taken and no other person was covered. In that view of the matter, the Insurance Company is not responsible for the death of the deceased.

7. Now, the question is, whether the principle of pay and recover would apply?

8. In this regard, the decision of the Supreme Court in the matter of Anu Bhanvara and others v. Iffco Tokio General Insurance Company Limited and others, (2020) 20 SCC 632 is required to be noticed herein profitably in which the Supreme Court in case of gratuitous passengers in a goods vehicle duly insured has dealt with the question whether payment of compensation is to be made jointly by owner and driver of vehicle, or by insurer, which could thereafter be recovered by insurer from owner and driver, and it has been held as under: -

“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 Respondent 1 insurance 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 an