1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD First Appeal No.178 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Hashmatbee w/o Khaja Minya Shekh age 55 years, occupation household, agril. Labour r/of Degaon, Taluka Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (In appeal memo Dist shown as Parbhani) claimant and Nos. 2 & 3 ori. Resp. Nos. 2 and 3. 2 WITH First Appeal No. 174 of 1996 1. United India Insurance Company Ltd. Nanded, Branch Office,C,G, Road, Nanded, through it’s present Branch Manager, Nanded, through it’s Divisional Manager, Aurangabad Division, Aurangabad, duly authorised and .. appellant/ori. constituted. Resp. No.3. Versus 1. Mainuddin s/o Aminoddin Shekh age 35 years, occup. Agriculture, labour, r/of Deogaon, Taluka Biloli District Nanded . 2. Shekh Mohammad s/o Abdul Rashid age major, occupation business, r/of Purna, District Nanded (now in Parbhani District). 3. Shadul Pashaminya s/o Nawaz Abdulsab Respondents/ age 27 years, occupation driver, Resp.No.1 orig. r/of Ghungrala, Taluak Biloli claimant & Resp District Nanded (but shown as Parbhani) Nos.2 & 3 orig. Resp.Nos.2 & 3 3 WITH First Appeal No. 175 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Rasoolminya s/o Khajaminya Shekh, age 40 years, occupation household, Agril-labour, r/of Deogaon, Taluka Biloli, District Aurangabad. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawas Abdulsab .. Respondents/ age 27 years, occupation driver, r/of Resp.No.1 orig. Ghungrala, Taluka Biloli, Nanded claimant & Resp. (But District is shown as Parbhani) Nos. 2 & 3 are orig.Resp. 2 & 3. 4 WITH First Appeal No. 176 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Hussainbee w/o Sardar Shekh age 55 years, occup. Household agril-labour, r/of Degaon, Taluka Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (District is shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 5 WITH First Appeal No. 177 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Sharifabee w/o Maheboobminya, age 30 years, occupation household, agril. Labour, r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 6 WITH First Appeal No. 179 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Allauddin s/o Maulasaab Shekh age 15 years, u/g of his mother Sugrabee w/o Maula Shekh, age 40 years, occupation agril. Labour, r/o Degaon, Taluka Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Resp. 2 & 3. 7 WITH First Appeal No. 180 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Bismallabee w/o Mainuddin Shaikh age 20 years, occupation household agril-labour, r/of Degaon, Taluka Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (Now in Parbhani District). 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 8 WITH First Appeal No. 181 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Jamalbee w/o Babuminya Shaikh age 35 years, occupation household, agril. Labour, r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 9 WITH First Appeal No. 182 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Bilkhisbee w/o Ziauddin Shekh, age 38 years, occupation household, r/of Degaon, Taluka Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 10 WITH First Appeal No. 183 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Wahedbee w/o Hydersab Shekh, age 50 years, occupation household, agril. Labour, r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 11 WITH First Appeal No. 184 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Ibrahim s/o Mohammad Shekh, age 30 years, occupation - agril. Labour, r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 12 WITH First Appeal No. 185 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Babansab s/o Mehmoobsaab Shekh age 30 years, occupation . Agril.labour , r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 13 WITH First Appeal No. 186 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Saleem s/o Shadul Minya Shekh age 20 years, occup. Student, r/o Degaon, Tq. Biloli,District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 14 WITH First Appeal No. 187 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Minyasaheb s/o Pirsab Shekh, age 50 years, occupation agril. Labour, r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 15 WITH First Appeal No. 188 of 1996 United India Insurance Company Ltd. Nanded, Branch Office C.G. Road, Nanded, through its’ present Branch Manager, Nanded. Through its’ Divisional Manager, Aurangabad Division, Aurangabad, duly authorised Appellant/ori. and constituted. Respondent No.3 Versus 1. Mannibee w/o Shadulminya Shekh age 30 years, occupation household, agril. Labour, r/o Degaon, Tq. Biloli, District Nanded. 2. Shekh Mohammad s/o Abdul Rashid, age major, occupation business, r/of Purna, Taluka Basmat, Dist. Nanded (now in Parbhani District) 3. Shadul Pashaminya s/o Nawaz Abdul Sab, age 27 years, occupation driver, Respondents/ r/o Ghungrala, Tq. Biloli, Dist.Nanded Resp.Nos 1 ori. (in appeal memo Dist.shown as Parbhani) claimant, Nos.2 & 3 ori. Respondents Nos. 2 and 3. 16 Shri S.V. Kulkarni, Advocate, for the appellant.Shri S.R. Palnitkar Advocate for Resp.No. 1. Smt. A.N. Ansari, Advocate for Respondent No.2 in F.A. Nos.174/96 and F.A. No.184 of 1996. Shri U.B.Bilolikar, Advocate, for Resp.No.3 in F.A.Nos.183/96 and 188/96. CORAM: P.R. Borkar, J. DATE: 10th June 2009. ORAL JUDGMENT. 1. All these appeals arise out of common judgment and consequent awards passed by learned District Judge and Ex-officio Member, Motor Accident Claims Tribunal, Nanded, in Motor Accident Claim Petition Nos. 134 to 142 of 1991, 145 of 1991, 155 to 157 of 1991, 159 of 1991 and 8 of 1994, decided 10.11.1995. 2. The original claim petitions filed by Respondent No. 1 in each appeal were for compensation towards injuries caused to him in motor accident. All the claimants sustained injuries in one and the same accident and the learned Tribunal was pleased to award compensation at Rs.12,000/= to each claimant i.e. Respondent No. 1 in respective first appeals. The appellant-insurance company and Respondent No. 2 Shekh Mohammad in all the appeals are directed to pay compensation jointly and severally to claimants. However, appellant insurance company-original Respondent No. 3 was allowed to recover compensation amount paid to respective claimant- respondent No. 1 herein, from the owner of the vehicle who is Respondent No. 2 in all these appeals. These appeals mainly seek to challenge the directions given to the the insurance company to first pay compensation jointly and severally along with owner and then to recover the amount paid, from the owner. No other point is raised in any of these appeals. 17 3. Learned Advocate for the appellant-insurance company Shri S.V. Kulkarni has relied upon the judgment of the Hon’ble Apex Court in the case of National Insurance Co. vs. Rattani 2009 AIR SCW 992.In the reported matter, deceased and injured were returning from marriage in goods vehicle. It is held that even if the goods received in marriage were being carried in the said vehicle, all the passengers in the said vehicle were gratuitous passengers and , therefore, could not have claimed to be owners of the goods. In the circumstances, it is held that insurance company is not liable for payment of compensation. In the present case also, the Tribunal has held that all injured were members of a marriage party and they were traveling in the goods truck owned by present Respondent No.2. And as such, there was breach of policy and insurance company is not liable to pay. There is no appeal or cross objections by claimants or the owner of the vehicle. 4. Learned Advocate for the appellant has further relied upon judgment of this court in the case of United India Insurance Co. vs. Anubai 2008 (1) Mh.L.J. 73. Learned Single Judge has considered the position in law regarding directions to insurance company first to pay compensation to claimants and then to recover the same from the owner of the vehicle. Learned Single Judge, after considering various authorities, concluded as follows in paragraphs 19 and 20. “It is conspicuous that the directions were given in respect of the procedure for recovery in the same 18 proceedings having regard to the scope and purport of section 168 of the Motor Vehicles Act, 1988. The directions in the context of determination of such a dispute after depositing the amount by the insurer are subject matter of the scope of section 168 of the Motor Vehicles Act, 1988. The Apex Court did not, however, lay down that in all such cases, the insurer shall first be liable to pay and then to recover it from the insured. The directions in Baljit Kaur’s case are given when the Apex Court came to the conclusion that the interest of justice would be subserved if the appellant (insurer) would be directed to satisfy the awarded amount in favour of the claimant, if not already satisfied and recover the same from the owner of the vehicle. Needless to say, in a particular case, when such directions are given to meet ends of justice, then same are given in exercise of extra ordinary jurisdiction of the apex Court. The same powers, which are available to the Apex Court under Article 136 and under Article 142 of the Constitution, are not available to the Tribunal or High Court. “ “ The purposive interpretation of section 168 of the Motor Vehicles Act would make it manifest that the provision relates to power of the Tribunal to determine the question of justness of the award and quantum of compensation. It may be said that section 168 is enabling provision but it does not empower the Tribunal to issue directions to the insurer to pay the 19 amount of compensation, though a finding is reached that the insurer is not liable to pay such amount on account of fundamental breach of the terms of insurance policy. Considering all the relevant aspects of the matter and having regard to the case law referred to above, I have no hesitation in holding that the directions given by the Tribunal in the bunch of present appeals are incorrect, improper and illegal. The impugned order is, therefore, unsustainable.” 5. Learned Counsel for Respondent No.1, Shri S.R. Palnitkar cited the case of Pramod Kumar vs. Mustari Begum, 2004 ACJ 1903. The said case is considered by learned Single Judge of our High Court in paragraph 15 of his judgment in United India vs. Anubai (supra). 6. Learned Advocate for Respondent No. 1 and Smt. Ansari, learned counsel for Respondent No. 2 in appeal Nos. 174 and 184 of 1996 have relied upon the judgment of Full Bench of Madras High Court in Branch Manager, United India Ins. Co. Ltd. v. Nagmmal 2009 (1) TAC 920 (Mad). In this case, the Full Bench of Madras High Court has observed that, the insurance company can be asked to pay amount and then recover the same from the owner. However in paragraph 31 (iv) it is observed that the principle of “ pay and recover” as statutorily recognized in Sections 149(4) and 149 (5), is not applicable ipso-facto in such cases in respect of passengers in 20 goods vehicle and, therefore, ordinarily court is not expected to issue such directions to insurance company to pay to the claimant and thereafter recover the amount from the owner. Paragraph 31 reads thus: “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. 21 (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 directions 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 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 the accident is immaterial. Since, the law has been specifically clarified, no Trial Court is expected to 22 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.” 7. The case of United India Insurance Co. vs. Vimal 2008 (2) ALL MR 67 is not relevant for our case. In that case, it was held that the persons traveling in tractor trolly were not gratuitous passengers but essentially coolies and, therefore, insurance company could not be exonerated from liability. 8. Considering the facts and circumstances of the case, particularly statement at Bar that half of the compensation amount is already deposited and paid to the claimant-respondent No. 1 in all these appeals, in my opinion, it is in the interest of justice to modify the order passed by the learned Tribunal, to some extent. 9. The order regarding quantum of compensation awarded to Respondent No. 1 is hereby confirmed. It is held that Respondent No. 2 Shaikh Mohammad, who is owner of the truck in question, is liable to pay the said compensation. The compensation amount already 23 deposited by the appellant-insurance company and paid to claimant- respondent No. 1 shall be retained by the claimants-respondents and the appellant-insurance company would be entitled to recover the same from Respondent No. 2 Shaikh Mohammad, the owner of the vehicle. So far as balance which is due and payable to claimant – respondent No. 1 in each appeal is concerned, they are entitled to recover the same from Respondent No. 2 Shaikh Mohammd–the owner of the vehicle and the appellant insurance company would not be liable to deposit the same. Direction to the appellant-company to deposit compensation amount and recover the same from the owner of the vehicle is set aside. In the circumstances, parties are directed to bear their own costs in the appeals. (P. R.BORKAR, J.) pnd/oo fa178.96