1 2025:CGHC:54118 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 122 of 2024 1 - Magma H.D.I. General Insurance Company Limited Through Its Legal Manager, Present Address Office No. 501 And 512, 5th Floor, D.B. City Corporate Park, Block No. 9, Rajbandha Maidan, District : Raipur, Chhattisgarh ... Appellant(s) versus 1 - Ram Dular S/o Juthan Aged About 50 Years R/o Village Ganeshpur, P.S. Pratappur, District : Surajpur, Chhattisgarh 2 - Shyamkumar S/o Shri Ramkumar Aged About 44 Years R/o Village Tukudand, P.S. Pratappur, District : Surajpur, Chhattisgarh 3 - Hemant Kumar S/o Shri Ashok Kumar Aged About 27 Years R/o Village Dharampur, Tahsil Pratappur, District : Surajpur, Chhattisgarh ... Respondent(s) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- For Appellants : Ms. Harneet Kaur, Advocate holding the brief of Shri Sourabh Sharma, Advocate. For Respondent No.1 : Shri Vikash Pandey, Advocate. For Respondents No.2 & 3 : None though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 06.11.2025 1. The appellant/ Insurance Company has filed this appeal challenging the liability as well as the quantum against the award dated 22.9.2023, NIRMALA RAO 2 passed in Claim Case No.53 of 2021 by the learned Additional Motor Accident Claims Tribunal, Pratappur, District Surajpur whereby the learned Tribunal passed an award to the tune of Rs.3,06,515/- and directed the Insurance Company to make payment alongwith interest @ 6% per annum on account of injuries sustained by claimant - Ram Dular. 2. Learned counsel for the appellant would vehemently argued that on 18.12.2019, the claimant was going to Village Khadgawan alongwith one Shyam Kumar on a motorcycle bearing registration No. C.G.15/DK/3590 as a pillion rider. She would contend that due to negligence of Shyam Kumar, the claimant fell down from the motorcycle and sustained grievous injuries. She would submit that the claimant filed a claim case under Section 166 of the Motor Vehicles Act and the learned Tribunal passed an award. She would submit that the vehicle was covered under an “own damage” policy from 25.10.2018 to 24.10.2019 and thereafter, it was insured only for third party risk up to 24.10.2023. As the accident occurred on 18.12.2019, after the expiry of own damage policy, the risk of the pillion rider was not covered. She would submit that the claimant would not fall within the purview of a third party and therefore, the learned Tribunal has committed an error of law while fastening the liability with the Insurance Company. She would submit that according to the Insurance Company, premium of Rs.100/- was paid and according to the conditions mentioned in the policy, damage to third party property upto Rs.1,00,000/- was covered. According to the limits of the liability, damaged to the third party property in respect of any one claim or series of claims arising out of one event was covered at Rs.1,00,000/-. He would contend that the 3 learned Tribunal has committed an error of law and the award may be set aside. 3. On the other hand, learned counsel for the claimant would oppose the submissions made by counsel for the appellants. He would submit that this ground was not raised before the learned Tribunal. He would contend that the learned Tribunal has passed just and proper compensation. He would further submit that even if the pillion rider of the offending vehicle would not fall within the purview of a third party according to the conditions mentioned in the Insurance Policy, as the vehicle was insured, the Insurance Company would be liable to pay the compensation amount first and thereafter, recover the same from the owner and driver of the vehicle. He has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Sunita and Others Vs. United India Insurance Co. Ltd. and Others reported in 2025 SCC OnLine SC 1464. 4. Heard learned counsel for the parties and perused the documents present on the record with utmost circumspection. 5. Admittedly, the vehicle was insured under an “own damage” policy from 25.10.2018 to 24.10.2019 and thereafter, insured only for third party risk. The claimant met with an accident on 18.12.2019 after expiry of the own damage policy. As no premium was paid to cover the risk of driver/ owner or a third party, certainly the Insurance Company can be held liable to make payment of compensation according to the limits of liability mentioned in the policy. According to the limits of liability as described in the policy, damage to the third party property in respect of any one claim or series of claims arising out of one event is 4 indemnifiable by the Insurance Company. In the present case, learned Tribunal has passed an award to the tune of Rs.3,06,515/- @ 6% per annum and fastened the liability with the Insurance Company. 6. Taking into consideration the Insurance Company, I am of the view that the learned Tribunal ought to have fastened the liability on the Insurance Company up to the extent of Rs.1,00,000/- and the driver and owner of the vehicle should have been held liable to make payment of remaining amount of compensation. The Hon’ble Supreme Court in the matter of Sunita (supra) while dealing with a similar issue held in paragraphs 13 to 16, as under: “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) 5 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.” 7. Taking into consideration the facts discussed above, the Insurance Company shall make payment of Rs.1,00,000/- to the claimant with interest and the driver and owner of the offending vehicle shall make payment of the balance amount with interest to the claimant. The Insurance Company shall first satisfy the award and thereafter, recover the amount from the driver and owner of the vehicle according to the law laid down by the Hon’ble Supreme Court in the matter of Sunita (supra). 8. Accordingly, this appeal is disposed of. Sd/- (Rakesh Mohan Pandey) Judge Nimmi