ANU BHANVARA ETC. Vs IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED
Bench: HON'BLE MR. JUSTICE UDAY UMESH LALIT, HON'BLE MR. JUSTICE VINEET SARAN
Judgment by: HON'BLE MR. JUSTICE UDAY UMESH LALIT
Case number: C.A. No.-006231-006232 / 2019
Diary number: 8720 / 2018
Advocates: VARINDER KUMAR SHARMA Vs
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.62316232 OF 2019 [ ARISING OUT OF S.L.P. [C] Nos.1909019092 OF 2019]
[@ DIARY NO. 8720 OF 2018]
ANU BHANVARA ETC. …..APPELLANTS VERSUS
IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED & ORS. …RESPONDENTS
J U D G M E N T
Vineet Saran, J.
2. These appeals are against the judgment and order dated
05.04.2016 passed by the High Court of Punjab and Haryana at
Chandigarh relating to the claims for compensation in respect of
injuries sustained by two gratuitous passengers in a jeep (goods
vehicle). The Motor Accidents Claims Tribunal (for short “Tribunal”)
had dismissed the claim petitions on the ground that the negligence
of the driver was not proved. However, the High Court, after
holding that the accident was as a result of composite negligence of
the driver of the jeep and the other offending vehicle, held that the
owner and driver of the jeep would be liable for payment of
compensation and exonerated the insurer of the jeep, on the ground
that the vehicle was insured as a goods vehicle and the claimants,
who had sustained injuries, were gratuitous passengers in the
goods vehicle (Jeep) and would thus not be covered under the
insurance policy as they were not travelling as owner of the goods.
The insurance of the jeep, as a goods vehicle, has been found to be
3. In F.A.O. No. 5460 of 2012 before the High Court, the
case was of one Anu Bhanvara, aged about fifteen years at the time
of the accident, who, because of injuries sustained, had to have
amputation of wrist resulting in 55% disability. The Tribunal
assessed total compensation of Rs.5,26,000/, which was after
assessing disability compensation of 55% at Rs.50,000/, loss of
prospect of marriage at Rs.1,00,000/ and cost of artificial limb at
Rs.3,76,000/. The High Court enhanced the compensation to
Rs.6,41,750/, after awarding additional compensation for medical
expenses, pain and suffering, income loss etc. in addition to what
was assessed by the Tribunal.
4. In the other F.A.O. No. 5461 of 2012 before the High
Court, the case was of one Rohit Kumar, aged about eighteen years
at the time of accident, who, because of the injuries sustained in
the accident, had to have his arm amputated below the elbow
resulting in 70% disability. The Tribunal assessed total
compensation of Rs.5,78,000/, which was after assessing the
disability compensation of 70% at Rs.50,000/, income assessed at
Rs.54,000/ and cost of artificial limb at Rs.3,90,000/. The High
Court enhanced the compensation to Rs.7,36,000/, after awarding
additional compensation for medical expenses, pain and suffering,
income loss etc. in addition to what was assessed by the Tribunal.
5. Challenging the said judgments of the High Court, these
appeals have been filed by the claimants for enhancement of
compensation and also to direct payment of compensation by the
6. We have heard Mr. S. L. Gupta, learned counsel for the
appellants and Ms. Shanta Devi Raman, learned counsel for the
respondent no.1insurer and have perused the material on record.
7. The questions now to be considered by this Court are
twofold; firstly, whether the amount of compensation awarded was
adequate or not; and secondly, whether the payment of
compensation is to be made jointly by the owner and driver of the
vehicle, or by the insurer which could thereafter be recovered by the
insurer from the owner and driver.
8. Having regard to the respective age of the two claimants
and keeping in view that compensation has been awarded on all
requisite heads by the High Court, we are of the opinion that no
interference is called with regard to the quantum of compensation
awarded to the two claimants.
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 the respondent no.1insurance 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
and in turn they would have the right to realise/recover the same
from the owner and driver of the vehicle. In support of his
submission, learned counsel for the appellants has relied on the
following decisions of this Court, namely, Manuara Khatoon v.
Rajesh Kumar Singh (2017) 4 SCC 796, Puttappa v. Rama Naik (Civil
Appeal No.4397 of 2016, disposed of on 2nd April, 2018); Manager,
National Insurance Co. Ltd. v. Saju P. Paul (2013) 2 SCC 41; New
India Assurance Co. Ltd. v. Vimal Devi (Civil Appeal Nos.15781579
of 2004, disposed of on 5th October, 2010); National Insurance Co.
Ltd. v. Challs Upendra Rao (2004) 8 SCC 517; New India Assurance
Co. Ltd. v. C. M. Jaya (2002) 2 SCC 278; Amrit Lal Sood v.
Kaushalya Devi Thapar (1998) 3 SCC 744.
10. Per contra, learned counsel for the respondentinsurance
company has contended that since the claimants were gratuitous
passengers in a goods vehicle, in which case the liability for
payment of compensation for death or body injury to the
passengers of such goods vehicle would not be covered, hence the
principle of pay and recover would not apply. It has thus been
contended that the order of the High Court is perfectly justified in
law and calls for no interference by this Court. In support of her
submission, learned counsel has relied on following decisions,
namely, New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC
223; National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1;
National Insurance Co. Ltd. v. Kaushalya Devi (2008) 8 SCC 246;
National Insurance Co. Ltd. v. Rattani (2009) 2 SCC 75; National
Insurance Co. Ltd. v. Prema Devi (2008) 5 SCC 403; Bharat AXA
General Insurance Co. Ltd. v. Adani MANU/TN/6503/2018; Bajaj
Allianz General Insurance Co. Ltd. v. Lal Singh (2015) SCC Online
11. We have heard learned counsel for the parties and
perused the record as well as the various decisions cited by learned
counsel for the parties. The insurance of the vehicle, though as a
goods vehicle, is not disputed by the parties. The claimants in the
present case are young children who have suffered permanent
disability on account of the injuries sustained in the accident.
Thus, keeping in view the peculiar facts and circumstances of this
case, we are of the considered view that the principle of “pay and
recover” should be directed to be invoked in the present case.
12. Accordingly, these appeals are disposed of with the
direction that the respondent no.1 – insurance company shall be
liable to pay the awarded compensation to the claimants in both the
appeals. However, respondent no.1 – insurance company shall
have the right to realize the said amount of compensation from the
respondents no. 2 and 3 (driver and owner of the vehicle) in
accordance with law.
13. There shall be no order as to costs.
………………………..J. [R. F. Nariman]
………………….…….J. [Vineet Saran]
New Delhi; August 9, 2019.