JUDGMENT:

1. Appeal is filed by the insurance company questioning the direction of the Tribunal to pay and recover the compensation, though the Tribunal found that the insurance company is not liable as the policy is ‘act’ policy and does not cover the risk of inmates of the jeep, vide judgment in OP No.151 of 2007 dated 26.06.2009 passed by the Chairman, Motor Vehicle Accident Claims Tribunal-

cum-II Additional District Judge, Karimnagar.

2. The claimant, while he was traveling in the jeep as a passenger, the respondent/driver drove it in a high speed, rash and negligent manner resulting in the vehicle turning turtle. The claimant received injuries and another passenger died in the said accident.

3. The Tribunal found that the policy Ex.B1 was an ‘act’ policy which was valid as on the date of the accident. However, no extra premium was paid to cover the risk of inmates of the jeep.

4. The Tribunal further found that the policy Ex.B1 did not cover P.W.1 (claimant) as he was a gratuitous passenger.

5. Learned counsel appearing for the insurance company submits that in the judgment reported in the case of New India Assurance Company, Shimla v. Kamla and others1 basing on which, this Court passed judgment in Oriental Insurance Company Limited v. Akula Narayana and another2, under similar circumstances, this Court had found fault with the trial Court directing insurance company to pay and recover the compensation from owner of the vehicle. Learned counsel also relied in the case of Balu Krishna Chavan v. The Reliance General Insurance Company Limited and others3 in which the Hon’ble Supreme Court held that though pay and recover was ordered, it cannot be made the case as a precedent, but only to serve the ends of justice.

6. Learned counsel further relied on the judgment of Hon’ble Supreme Court in the case of Indian Bank v. ABS Marine

1 (2001) 4 Supreme Court Cases 342

2 2022 LawSuit (TS) 1652 3 2022 LiveLaw (SC) 932

Products (P) Ltd.,4 and argued that the Hon’ble Supreme Court passes orders under Article 142 of the Constitution of India, unless specifies that such order has to be followed, cannot be followed by the courts below. The relevant paragraph is extracted hereunder:

“26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may.”

7. On the other hand, learned counsel for the respondent/claimant would submit that the Tribunal has correctly passed orders granting compensation and directing the insurance company to pay amount and recover from the owner. He relied on the judgment of Hon’ble Supreme Court in the case of Manuara Khatun and others v. Rajesh Kumar Singh and others5.

4 (2006) 5 Supreme Court Cases 72 5 (2017) 4 Supreme Court Cases 796

8. The Hon’ble Supreme Court in Manuara Khatun’s case (supra) and Balu Krishna Chavan’s case (supra) found that the ends of justice would