Noufal v. Sakeena Rasheed, Shamad and The Manager New India Assurance Company Ltd., Irinjalakuda

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dinesh Kumar Singh
Judgment Date: 2023-11-15
Court Decision / Holding: Original petition dismissed; the pay-and-recover directive against the driver and owner is maintained in light of existing liability concepts and Parminder Singh (supra). Pending interlocutory applications, if any, are also dismissed.
Final Disposition: Petition dismissed.

Parties to the Case

Appellants / Petitioners

Noufal

Respondents

Sakeena Rasheed
Shamad
The Manager New India Assurance Company Ltd., Irinjalakkuda

Legal Representation & Advocates

Counsels for Petitioners

• V.N. Sankarjee
• Sunny K. Manjaly
• V.N. Madhusudanan
• R. Uday Jyothi
• M. Vinod
• M. Suseela
• Keerthi B. Chandran
• Vijayan Pillai P.K.
• Sineesh K.M.

Counsels for Respondents

• Lal K. Joseph, SC

Case Synopsis & Summary

Noufal, the petitioner in OP (MAC) No. 155 of 2023, challenges Ext. P4 order in IA No. 11/2023 of OP (MV) No. 841/2015 of the Motor Accidents Claims Tribunal, Irinjalakkuda. The Tribunal had awarded compensation of Rs. 7,06,620/- along with interest at 8% per annum and costs against the owner, driver and insurer, directing the New India Assurance Company to deposit the amount with liberty to recover from the owner and the driver. The petitioner, the driver, contends that there was no insurance contract between himself and the insurer and therefore there is no legal basis to recover the amount from him; he had not participated in the MV proceedings and was ex parte. The insurer supported the Tribunal’s directive to pay and recover, relying on Parminder Singh v. New India Assurance Co. Ltd. (2019) 7 SCC 217, which permits a pay-and-recover mechanism. The petitioner argued that Sections 147(3) and 149(4) of the Motor Vehicles Act authorize payment of compensation by the insurer to the victim but do not authorize recovery from the driver absent an insurance contract. The High Court notes the insurer discharged liability as per the Tribunal’s order and holds that the driver and owner are jointly and severally liable; Parminder Singh supports pay-and-recover. Consequently, the petition is dismissed, and pending interlocutory applications are also dismissed, upholding the order to recover from the driver and owner.”

Provisions of Law Cited

Motor Vehicles Act, 1988, Section 147(3)Motor Vehicles Act, 1988, Section 149(4)

Legal Doctrines & Maxims

Pay and recover principle
Joint and several liability

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that under Sections 147(3) and 149(4) of the Motor Vehicles Act, while the Tribunal can direct the Insurance Company to pay compensation to the victim, there must be a contract of insurance between the driver and the insurer. Since there was no such contract, directing recovery from the driver is not permissible. The petitioner contends that the pay-and-recover direction is unwarranted absent a contractual relationship.

Contentions of Respondents

The respondents contend that the driver and owner share joint and several liability. The Insurance Company discharged its liability in compliance with the Tribunal’s order, and it is competent to recover the amount from the driver and owner jointly and severally. The Tribunal relied on Parminder Singh v. New India Assurance Co. Ltd. to permit pay and recover, and the High Court should uphold this principle.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Parminder Singh v. New India Assurance Company Ltd. and Others	(2019) 7 SCC 217	Positive	Court relied on Parminder Singh to allow pay-and-recover against insurer; used to justify directing pay and recover from owner/driver.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA,** **1945** **OP (MAC) NO. 155 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED 5.8.2023 IN IA NO.11/2023 IN OPMV 841/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **IRINJALAKUDA** ## **PETITIONER/PETITIONER/R2:** NOUFAL, AGED 31 YEARS S/O NASSAR, KUNNUMPURATH HOUSE, PULLUT DESOM, PULLUT VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT., PIN - 680663 BY ADVS. V.N.SANKARJEE SUNNY K.MANJALY V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. SINEESH K.M. ## **RESPONDENTS/RESPONDENTS/PETITIONER & R1 & R3:** 1 SAKEENA RASHEED, AGED 44 YEARS W/O RASHEED, KANDUNGASSERY HOUSE, KARUMATHRA VILLAGE, NEDUNGANAM DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT., PIN - 680123 2 SHAMAD,AGED 29 YEARS S/O NASSAR, KUNNUMPURATH HOUSE, PULLUT DESOM PULLUT VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT., PIN - 680663 ## **OP (MAC) NO. 155 OF 2023** **==> picture [7 x 9] intentionally omitted <==** 3 THE MANAGER NEW INDIA ASSURANCE COMPANY LTD., IRINJALAKUDA, THRISSUR DISTRICT., PIN - 680121 SRI.LAL K.JOSEPH, SC FOR R3 THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (MAC) NO. 155 OF 2023** 3 ## J U D G M E N T The present original petition has been filed impugning Ext.P4 order passed by the Motor Accidents Claims Tribunal, Irinjalakkuda (“Tribunal”, for short) in I.A.No.11/2023 in OP(MV) No.841/2015. Petitioner was the second respondent in OP(MV) No.841/2015 filed by the first respondent herein before the Tribunal. As per the allegations, the petitioner is the driver of the vehicle bearing registration No.KL-07/C-1683, which met with an accident on 24.4.2015 and as a result of the accident, the first respondent herein, who is the claimant, suffered serious injuries and she filed OP(MV) No.841/2015 before the Tribunal claiming compensation. The petitioner herein, despite service of summons, did not participate in the proceedings before the Tribunal and set ex parte. The Tribunal passed award dated 31.8.2018 vide Ext.P1, awarding compensation to the tune of Rs.7,06,620/- along with interest @ 8% per **OP (MAC) NO. 155 OF 2023** 4 annum and proportionate costs, from respondent Nos.1 to 3 therein jointly and severally, and directing the Insurance Company to deposit the said amount with liberty to recover it from the first and second respondents therein. 2. The Insurance Company sought to dismiss the plea on the basis that the petitioner herein, the driver, did not have valid driving licence on the date of the accident and therefore, the Insurance Company was not liable to pay any amount towards discharge of the liability. However, the Tribunal directed the Insurance Company to deposit the awarded amount and recover it from the owner and the driver. 3. After payment of the awarded amount, the Insurance Company filed execution petition, in which recovery notices were issued against the petitioner/driver as well as the owner. It was at that stage, the petitioner herein filed I.A.No.11/2023 before the Tribunal for setting aside the award. The only ground urged before the **OP (MAC) NO. 155 OF 2023** 5 Tribunal in the application was that as there was no insurance contract between the petitioner/driver and the insurance company, the direction to recover the awarded amount from the petitioner and the owner was against the law. The Tribunal however relying on the judgment of the Hon'ble Supreme Court in Parminder Singh v. New India Assurance Company Ltd. and Others [(2019) 7 SCC 217] held that the principle of “pay and recover” can be ordered to direct the insurance Company to pay the victim and then recover the amount from the owner and driver of the offending vehicle. 4. Relying on the said principle, the Tribunal dismissed the application of the petitioner herein. 5. The submission of the learned counsel for the petitioner is that under the provisions of Sections 147(3) and 149(4) of the Motor Vehicles Act, though the Tribunal can direct the Insurance Company to pay the awarded amount to the victim/legal heirs of the victim, the same can not **OP (MAC) NO. 155 OF 2023** 6 be directed to be recovered from the driver, inasmuch as there was no contract of insurance between the driver and the Insurance Company. 6. The said argument is liable to be rejected on the ground that the liability of the driver and the owner is joint and several and that the Insurance Company discharged their liability in compliance with the order passed by the Tribunal. The amount sought to be recovered from the driver and the owner is not in pursuance to the contract of insurance. The Insurance Company is not liable to pay anything as the driver was not having valid driving licence on the date of the accident; but since the Insurance Company discharged the liability of the owner and the driver as per the direction of the Tribunal, it is competent to recover the same from the driver and the owner jointly and severally. The Hon'ble Supreme Court also in the case of Parminder Singh (supra) has held that the Insurance Company can be directed to pay the amount of compensation and then recover the **OP (MAC) NO. 155 OF 2023** 7 same from the owner and the driver of the offending vehicle. Hence, I find no substance in the present original petition and the same is hereby dismissed. Pending interlocutory application, if any, in the original petition stands dismissed. Sd/DINESH KUMAR SINGH JUDGE jg 8 ## **OP (MAC) NO. 155 OF 2023** ## **APPENDIX OF OP (MAC) 155/2023** PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF THE AWARD DATED 31.8.2018 IN O.P.(MV) NO.841/2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA Exhibit P-2 TRUE COPY OF THE PETITION DATED 16.6.2023 IN I.A. 11/2023 IN O.P.(MV) NO.841/2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA Exhibit P-3 TRUE COPY OF OBJECTION DATED 19.6.2023 IN I.A. NO.11/2023 IN O.P.(MV) NO.841/2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA Exhibit P-4 CERTIFIED COPY OF THE ORDER DATED 5.8.2023 IN I.A. NO. 11/2023 IN O.P.(MV) NO. 841/2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA