MAC/1075/2019 of SMT. KIRAN THAKUR Vs YOGESH KUMAR RATHORE @ YOGESHWAR RATHORE on 23 August 2026

1. Regard being had to the similitude of the questions of facts and law involved, being arising out of a common impugned award and on the joint request of learned counsel for the parties, both these appeals are clubbed together, heard together and being disposed of by this common order. In MAC-460-2019:

2. None for the Driver & Owner in two rounds today. Even on 06.07.2026 also there was no representation on behalf of the appellant when the matter was last listed. It appears that driver & owner of the offending vehicle has lost interest in further prosecuting this appeal. Accordingly, MAC-460-2019 is dismissed for want of prosecution. In MAC-1075-2019:

3. MAC-1075-2019 has been filed by the Claimant under Section 173 of the Motor Vehicle Act, 1988 challenging award dated 10.01.2019, seeking enhancement of the amount of compensation.

4. Learned counsel for the claimant would submit that: (i) the plea of contributory negligence has wrongly been found proved by the learned Claims tribunal and erred in deducting 50% amount on the said head, therefore, the same is liable to be set aside and claimant is entitled for full compensation and further learned Claims Tribunal has erred in awarding less amount of compensation in the facts of the case also; (ii) learned Claims Tribunal further erred in exonerating the respondent- Insurance Company from the liability on the ground of gratuitous passenger, whereas, in light of recent decision of the Supreme Court in Sunita & ors v. United India Insurance Co. Ltd. and other 1 , the principle of pay and recover deserves to be adopted in the present case. Therefore, the instant appeal be allowed and the compensation awarded by the Claims Tribunal may suitably be enhanced.

5. Learned counsel for the Insurance Company would submit that the claimant was himself negligent, therefore, 50% amount on the head of contributory negligence has rightly been deducted. The amount of compensation awarded by the Claims Tribunal is just and proper which does not call for any interference. Even, there is no illegality in the findings of the tribunal whereby the Insurance Company has been exonerated from the liability to pay compensation to the claimant.

6. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.

7. In the case at hand, it is the plea of the Claimant that learned Claims Tribunal erred in exonerating the respondent- Insurance

2025 SCC Online SC 1469 : 2025 INSC 867

Company from the liability on the ground of gratuitous passenger, where in light of Sunita (supra) principle of pay and recover is required to be directed.

8. The Supreme Court in the matter of Sunita (supra) has held as under: “12. The next question which arises for our consideration is whether the Insurance Company is liable to indemnify the compensation amount to the claimant-appellant and, thereafter, recover the same from the driver and owner of the vehicle.

13. Adverting to the facts in hand, from a bare perusal of the record, it is borne that the vehicle in question was insured with “Liability Only Policy” and no premium was paid to cover the driver, owner, or a gratuitous passenger travelling therein. However, even then, in our view, the Courts below erred in holding that the Insurance Company is not liable to pay the compensation to the claimant-appellants, for the principle of “Pay and Recover” ought to have been invoked. As such, we are inclined to interfere with the above findings of the Courts below.

14. We must advert to the exposition of this Court in National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1. The deceased therein was travelling as a gratuitous passenger, and due to the rash and negligent driving of the offending vehicle, lost his life. The Insurance Company was directed to satisfy the amount awarded by the Courts below and recover the same from the owner of the vehicle, as the premium was not paid by the owner of the vehicle towards gratuitous passenger.

15. The above position has been followed by this Court in Anu Bhanvara v. IFFCO Tokio General Insurance Co. Ltd., (2020) 20 SCC 632 wherein the injured person was travelling as a gratuitous passenger and was not covered under the Insurance Policy, the driver and owner of the vehicle was held liable for payment of compensation amount. This Court applied the principle of “Pay and Recover” and directed the Insurance Company to pay the amount and, thereafter, recover the same from the owner of the vehicle.

16. The aforementioned principle was adopted by this Court in various judgments of this Court in Amrit Lal Sood v. Kaushalya Devi Thapar (1998) 3 SCC 744; New India Assurance Co. Ltd. v. C.M. Jaya (2002) 2 SCC 278; National Insurance Co. Ltd. v. Challa Upendra Rao (2004) 8 SCC 517; New India Assurance Co. Ltd. v. Vimal Devi 2010 SCC Online SC 49; National Insurance Co. Ltd. v. Saju P. Paul (2013) 2 SCC 41; Manuara Khatun v. Rajesh Kumar Singh (2017) 4 SCC 796; and Puttappa v. Rama Naik 2018 SCC Online SC 3496.

17. Applying the above expositions of law, the Courts below ought to have directed the Insurance Company to indemnify the amount and thereafter recover the same.

18. Therefore, in light of the attending facts and circumstances of the case, we are of the view that the Insurance Company is liable to indemnify the compensation amount awarded by the Tribunal and recover the same only from the owner of the offending vehicle.”

9. Thus, in view aforesaid dicta of the Supreme Court, the learned Claims Tribunal has clearly erred in law while exonerating the insurance company, and, therefore, in the considered opinion of this Court, doctrine of pay and recover is liable to be directed in the present case. It is held accordingly.

10. So far as plea of the Claimant that 50% deduction on the ground of contributory negligence is concerned, the finding recorded by the learned Claims Tribunal is totally perverse in this regard. Though, the insurance company took plea of contributory negligence, but failed to lead any clinching evidence to establish the said fact. Even, witness- Deepak Kumar Dewangan has been examined by the Insurance Company, but he did not utter a word with regard to the contributory negligence. Even otherwise, the deceased was sitting in the offending vehicle, therefore, question of contributory negligence doesn’t arise. As such, finding of the learned Claims Tribunal with regard to contributory negligence is liable to be and is hereby set aside. The Claimant is held entitled for full compensation. It is held accordingly.

11. So far as the plea of the claimant that just and proper compensation has not been awarded, true it is that the Claims tribunal has not awarded any amount on the head of loss of parental consortium, whereas Rs.40,000/- ought to have been awarded. It is held accordingly.

12. In view of the foregoing analysis, the Claimant is held entitled for full compensation i.e. Rs.10,29,600/- and, the finding of the Claims Tribunal with regard to contributory negligence and deduction of 50% amount towards it is hereby set aside. Further, the amount of compensation of Rs.10,29,600/- awarded by the Claims Tribunal is enhanced to Rs.10,69,600/- (i.e. additional Rs.40,000/- on the head of parental consortium). Consequently, the claimant is held entitled for Rs.10,69,600/- as compensation. The concerned respondent is directed to deposit the amount of compensation as enhanced by this Court within a period of 45 days from the date of receipt of copy of this order. The concerned respondent is directed to deposit the amount of compensation as enhanced by this Court within a period of 30 days from the date of receipt of copy of this order. The additional amount of compensation shall carry interest @ 7% per annum from the date of claim application before the claims tribunal till its realization. Further, in light of decision of Sunita (supra) by adopting the doctrine of pay and recover, it is ordered that the Insurance Company would firstly pay the entire amount of compensation alongwith interest (including that amount enhanced by this Court) to the claimant and thereafter recover it from the owner and driver of the offending vehicle. Rest of the conditions of the impugned award shall remain intact.

13. Accordingly, the appeal filed by the Driver & Owner being MAC- 460-2019 is hereby dismissed for want of prosecution and the appeal filed by the claimant being MAC-1075-2019 is allowed in part and the impugned award is modified to the extent as indicated herein-above.

sd/-

(Sanjay K Agrawal)

Judge s@if