Manuara Khatun & Ors vs Rajesh Kr. Singh & Ors

3) We herein set out the facts, in brief, to appreciate the issue involved in these appeals.

4) On 03.07.2001, Ismail Hussain, husband of Manuara Khatun and Nirod Prasad Mohanty, husband of Mamoni Saikia Mohanty along with some other passengers were proceeding towards Guwahati from Nagoan in Tata Sumo bearing Registration No. AR-09-3997, when they arrived near Jorabat, there was a head-on-collusion between the Tata Sumo and a Truck bearing Registration No. AS-01-H-2598 coming from the opposite direction as a result of which Ismail Hussain and Nirod Prasad Mohanty died on the spot and some other passengers sustained injuries.

5) Manuara Khatun, wife of the Ismail Hussain and her 5 minor children filed Claim petition bearing MAC Case No. 653 of 2001 claiming total compensation of Rs.55,20,400/- and Mamoni Saikia Mohanty, wife of Nirod Prasad Mohanty and her 3 minor children preferred claim petition bearing MAC No. 652 of 2001 claiming total compensation of Rs.54,62,500/- before the Motor Accident Claims Tribunal, Nagaon against Rajesh Kumar Singh, owner of the Tata Sumo(respondent No.1), Bhadra Kt. Das, owner of the Truck(respondent No.2), the insurer of the Tata Sumo-United India Insurance Co. Ltd.(respondent No.3) and New India Assurance Company Ltd., Insurer of the Truck(respondent No.4). The claim petitions were contested only by the Insurance Companies. So far as the owners of the vehicles were concerned, they remained ex parte.

6) The Tribunal, vide award dated 05.08.2008, partly allowed both the claim petitions and awarded a sum of Rs.24,89,500/- to Manuara Khatun, wife of Ismail Khatun and Rs.24,09,500/- to Mamoni Saikia Mohanty, wife of Nirod Prasad Mohanty with interest @ 7.5% p.a. from the date of filing of case till payment. The Tribunal held that Tata Sumo was a private car driven by the driver in a rash and negligent manner and at a high speed, which resulted in the accident. It was also held that the driver of the Truck was not negligent in driving the Truck. The Tribunal further held that all the passengers including the two deceased were traveling in Tata Sumo for hire and hence they were held to be “gratuitous passengers”. It was held that due to this reason, United India Insurance Company Ltd., the insurer of Tata Sumo(offending vehicle) was not liable. Accordingly, the Insurance Company was exonerated from the liability and the award was passed only against the owner of Tata Sumo (respondent No.1) in both the claim cases. So far as the owner of the Truck(respondent No.2) and the New India Assurance Co. Ltd.-Insurer of the Truck(respondent No.4) were concerned, both were held not liable in any manner because, as mentioned above, the driver of the Truck was not found negligent in driving the Truck.

7) Dissatisfied with the award, appeals bearing MAC Appeal No.7 of 2009 and MAC Appeal No. 8 of 2009 under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as “the Act”) were filed before the High Court by the claimants for enhancement of the compensation amounts awarded by the Tribunal. The other ground raised before the High Court was that it was the liability of the Insurance Company of the offending vehicle to compensate the claimants jointly and severally with the owner of the Tata Sumo and in any event, the direction to pay the compensation by the insurer of offending vehicle and then to recover from its insured should have been passed against the Insurer(respondent No.3).

22) In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul’s case quoted supra.

23) Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that respondent No. 3-United India Insurance Company Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter respondent No. 3 - United India Insurance Company Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending Vehicle (Tata Sumo)-respondent No.1 in these very proceedings by filing execution application against the insured.