THE BRANCH MANAGER, vs PAKKIYARAJ,
- Court
- Madras High Court
C.M.A.(MD).No.441 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On: 23.09.2026 Pronounced On:02.11.2026
CORAM
THE HON'BLE MR JUSTICE K.K. RAMAKRISHNAN
CMA(MD) No. 441 of 2014
CNR:{HCMD010824342014}
The Branch Manager,
M/s.United India Insurance Co.Ltd., 463,
V.O.C.Road, Karaikudi.
..Petitioner(s)
Vs
1. Pakkiyaraj,
2. Seenivasan, (died)
(R2 Herein Was Ex-parte In Tricbunal)
3. B.Radha,
4. P.Anitha,
(R3 & R4 Are Brought On Record
As Lrs Of The Decd R2 Vide Or Dated 8.3.13
& Made In MP(md) Nos.1 To 3/11 In Mp(md)
No.2/08 In Cma(md)sr No.8932/08 By Gmaj )
..Respondents
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C.M.A.(MD).No.441 of 2014
For Petitioner(s): M/s.B.Rajeshsaravanan
For Respondent(s): Court Notice
--------
R1 - Pakkiyaraj
R3 - B.Radha
R2 - Died (steps Taken)
Paper Publication Ordered On 13.08.2026 For R4
---------------
R4 - Paper Publication - Proof Not Filed
JUDGMENT
The second respondent in M.C.O.P.No.243 of 2002 on the file of the Motor
Accidents Claims Tribunal-cum-Additional District Judge has filed the present
C.M.A.(MD).No.441 of 2023, challenging the award dated 10.08.2007 passed in
M.C.O.P.No.243 of 2002.
2. Facts of the case:
2.1.The claimant in the said M.C.O.P., along with several other persons,
travelled in the mini lorry bearing Registration No.TN-29-B-1823, which was insured
with the appellant-Insurance Company. It is stated that, due to the rash and negligent
driving of the driver of the said mini lorry, the vehicle capsized. At the time of the
accident, more than 20 persons were travelling in the vehicle and several of them
sustained injuries. The injured persons consequently filed separate claim petitions
before the Tribunal seeking compensation for the injuries sustained by them.
2.2.The appellant-Insurance Company contested the claim petitions
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C.M.A.(MD).No.441 of 2014
contending that the claimants were gratuitous passengers travelling in a goods vehicle
and that the risk of such passengers was not covered under the policy. It was further
contended that the claimants had travelled in the vehicle as persons who had paid for
their journey and, therefore, the Insurance Company was not liable to indemnify the
owner in respect of such passengers. The Insurance Company also disputed its
liability on the ground of violation of the policy conditions.
2.3.Before the Tribunal, the respective claimants adduced oral and
documentary evidence in support of their claims. Exs.P1 to P26 were marked on the
side of the claimants. On the side of the respondents, R.W.1 was examined and Ex.R1
was marked.
3. Findings of the Tribunal:
3.1.Upon consideration of the evidence available on record, the Tribunal
found that the accident had occurred due to the rash and negligent driving of the
driver of the insured mini lorry. The Tribunal also found that the claimants had
travelled in the vehicle as gratuitous passengers. Nevertheless, taking note of the
prevailing legal position, the Tribunal directed the Insurance Company to satisfy the
award in the first instance and thereafter recover the amount from the owner of the
vehicle and awarded a sum of Rs.8,000/- as a compensation at the rate of 7.5%
interest.
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C.M.A.(MD).No.441 of 2014
3.2.Aggrieved by the said direction, the Insurance Company has preferred
the present appeal.
4.Submission of the learned counsel appearing for the appellant:
4.1.The learned counsel appearing for the appellant-Insurance Company
would submit that, once the Tribunal had recorded a finding that the claimants were
gratuitous passengers in a goods vehicle, the Insurance Company was not liable to
indemnify the owner. According to the learned counsel, the Tribunal ought to have
exonerated the Insurance Company and ought not to have issued a direction for pay
and recovery. Reliance was placed upon the judgment cited on behalf of the
appellant.
5.Submissions of the learned counsel appearing for the respondent:
5.1.Per contra, the learned counsel appearing for the claimant would submit
that the Tribunal passed the award on 10.08.2007, having regard to the legal position
prevailing at the relevant point of time, and rightly directed pay and recovery. It is
further submitted that the question relating to the power of the Court to direct pay and
recovery, even in cases involving violation of policy conditions, has subsequently
been considered elaborately by this Court in C.M.A.(MD) No.771 of 2023.
Therefore, the direction issued by the Tribunal does not warrant interference.
6.This Court has considered the rival submissions and perused the materials
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C.M.A.(MD).No.441 of 2014
available on record.
7.The following point arises for consideration:
7.1.Whether the Tribunal was justified in directing the appellant-Insurance
Company to pay the compensation to the claimant in the first instance and thereafter
recover the same from the owner, despite recording a finding that the claimant had
travelled as a gratuitous passenger in the goods vehicle?
8. Discussion and findings:
8.1.The evidence available on record establishes that the claimant was
travelling in the insured mini lorry along with several other persons and that the
vehicle capsized due to the negligence of its driver. The Tribunal has specifically
found that the occupants were gratuitous passengers in the goods vehicle.
8.2.Therefore, this Court need not decide the issue whether the claimant
was a gratuitous passenger. The said finding has already been recorded by the
Tribunal. The question is confined to the legal consequence of such finding and, in
particular, whether the Tribunal was justified in directing the Insurance Company to
satisfy the award in the first instance and thereafter recover the amount from the
owner.
8.3.In this regard, a similar issue has already been considered by this Court
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C.M.A.(MD).No.441 of 2014
in C.M.A.(MD).No.771 of 2023. The said decision has elaborately considered the
principles governing the direction for pay and recovery, including the subsequent
decision of the Hon'ble Supreme Court reported in 2026 1 TN MAC 680 [citation to
be verified].
8.4.The relevant discussion contained in paragraphs 8.1 and 8.2 of the
judgment in C.M.A.(MD) No.771 of 2023 is extracted below:
“ 8.1. This issue was authoritatively considered by the Constitution Bench
of the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Asha
Rani, (2003) 2 SCC 223, wherein it was held that an insurer is not
statutorily liable to indemnify the owner in respect of gratuitous
passengers travelling in a goods vehicle. The said principle was reaffirmed
in National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1. However,
the law did not remain the same thereafter. The subsequent decisions of the
Hon'ble Supreme Court have repeatedly invoked the doctrine of "pay and
recover" in appropriate cases, notwithstanding the absence of statutory
liability, with a view to protecting the interests of innocent third-party
victims. The principle has been applied in several decisions, including
National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297; Mangla
Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656; Shamanna v.
Oriental Insurance Co. Ltd., (2018) 9 SCC 650; and other subsequent
judgments. The learned counsel for the appellant, however, relied heavily
upon Baljit Kaur case and submitted that the Tribunal committed an error
in invoking the doctrine of "pay and recover", the same cannot be
accepted.
8.2. This Court finds considerable force in the submissions
advanced on behalf of the claimants that in view of the latest judgment of
the Hon'ble Supreme Court in the case of Kaminiben and Others -vs-
Oriental Insurance Co.Ltd., and Ors reported in 2026 (1) TN MAC 680
(SC), the Hon'ble Supreme Court has once again considered the
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C.M.A.(MD).No.441 of 2014
correctness of applying the doctrine of "pay and recover" in such cases by
framing the specific question whether the High Court was justified in
reversing the finding of Motor Accident Claims Tribunal which had
directed the insurance company to pay the amount of compensation to the
claimants and thereafter recover the same from the owner of the vehicle
and has affirmed the exercise of such power by the Motor Accident Claims
Tribunals and set aside the judgment of the High Court after elaborate
discussion and following the decision of the “Saju P.Paul” and “Manuara
Khatun” and distinguishing the “Amudhavalli” case. Further the reference
was disposed of by the Hon'ble Supreme Court with observation to
consider the cases on case to case basis. When the Hon'ble Supreme Court
has reiterated the applicability of the “pay and recover” doctrine in the
case of Kaminiben and Others -vs- Oriental Insurance Co.Ltd., and Ors
reported in 2026 (1) TN MAC 680 (SC), this Court, being bound under
Article 141 of the Constitution of India, has no jurisdiction to take a
contrary view by placing reliance exclusively upon Baljit Kaur, ignoring
the subsequent law holding the field. Judicial discipline demands that this
Court has to follow the law as explained in the later binding precedents of
the Hon'ble Supreme Court on the basis of binding nature of article 141 of
Constitution of India, which says that the law declared by the Hon'ble
Supreme Court to be binding on all Courts. Consequently, the direction
issued by the learned Tribunal directing the insurer to satisfy the award in
the first instance and thereafter recover the amount from the owner of the
offending vehicle is fully in accordance with the settled legal position and
calls for no interference. Accordingly, the contention advanced by the
learned counsel for the appellant-Insurance Company is rejected. ”
8.5.The principle laid down in the said decision applies to the facts of the
present case. The finding that the claimant was a gratuitous passenger and that there
was a violation of the policy condition does not, in the facts of the present case,
require the claimants to be denied the benefit of the award as against the insurer with
direction to pay and recover from the owner of the vehicle. The direction for pay and
recovery issued by the Tribunal is consistent with the principle subsequently
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C.M.A.(MD).No.441 of 2014
recognised in the decisions referred to above.
8.6.This Court therefore finds no ground to interfere with the direction
issued by the Tribunal requiring the appellant-Insurance Company to satisfy the
award in the first instance and thereafter recover the amount from the owner of the
vehicle. In view of the above discussion, the challenge made by the appellant-
Insurance Company fails.
9.Result:
9.1.Accordingly, C.M.A.(MD).No.441 of 2023 is dismissed .
The award dated 10.08.2007 passed in M.C.O.P.No.243 of 2002 by the
Motor Accidents Claims Tribunal-cum-Additional District Judge is confirmed insofar
as the direction for pay and recovery is concerned.
The appellant-Insurance Company is directed to deposit the entire award
amount, together with accrued interest, after adjusting the amount, if any, already
deposited, within a period of eight weeks from the date of receipt of a copy of this
judgment. On such deposit, the claimant is entitled to withdraw the amount in
accordance with law and the procedure prescribed by the Tribunal. The Insurance
Company shall thereafter be entitled to recover the amount so paid from the owner of
the insured vehicle, in accordance with law. There shall be no order as to costs.
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C.M.A.(MD).No.441 of 2014
02-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
sbn
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C.M.A.(MD).No.441 of 2014
To
1.The Motor Accident Claims Tribunal
Additional District Court,
Pudukkottai.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madruai.
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C.M.A.(MD).No.441 of 2014
K.K.RAMAKRISHNAN, J.
sbn
CMA(MD)No.441 of 2014
02-11-2026
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