ORIENTAL INS.CO.LTD. Vs. HEERALAL

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred against the impugned award dtd. 27/4/2012 passed in Claim Case No. 149/2010 whereby the survivors of the deceased Raju Bai, aged about 33 years, has been awarded an amount of Rs.2,85,000.00 with the stipulation that amount first will be paid by the insurance company and then it will be recovered from the owner and driver of the offending vehicle No. M.P.43-G-1007. It is undisputed that the Matador No. M.P.43-G-1007 is a goods vehicle which turned turtle and thereby resulting in the death of the deceased Raju Bai wherein deceased along with other persons were travelling.

(2.) Learned counsel for the appellant/insurance company inviting the attention of this Court towards paragraph No. 3, 11 & 18 submits that there were breach of licence as the driver of the aforesaid vehicle was having only licence to drive Light Motor Vehicle and not to drive transport vehicle and secondly, the deceased along with the other persons, who have been carried in the goods vehicle and there was no risk cover in the policy (Annexure NA-4) in this regard for the passengers. Learned trial Court has though mentioned the aforesaid fats in the impugned award, but clearly exonerating the insurance company has applied principle of pay and recover and directed the insurance company to pay the award amount to the survivors of the deceased first and then it will be recovered from the owner and driver. This direction is against the settled principles of law that in case of goods vehicle where insurance company has not covered the risk, insurance company should be exonerated and principle of pay and recover cannot be applied. For this he has placed reliance upon paragraphs No. 12, 13, 16 & 21(2) of the judgment passed by the coordinate Bench of this Court in Shivram Choudhary vs. Veerendra Kumar Mishra & Ors. 2025 ACJ 2697.

(3.) Learned counsel for the respondents No. 1 and 2/claimants submits that direction of pay and recover has rightly been applied by the learned Claims Tribunal and it needs no change by allowing the appeal, therefore, prays for dismissal of the appeal.