Supreme Court – Daily Orders
Kaminiben vs The Oriental Insurance Company Limited on 11 February, 2026
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2026
(Arising out of SLP (Civil) No.21802/2023)
KAMINIBEN & ORS. APPELLANT(S)
VERSUS
THE ORIENTAL INSURANCE COMPANY LIMITED & ORS.
RESPONDENT(S)
O R D E R
1. Leave granted.
2. The short question arising for decision making in this
appeal is whether in the facts and circumstances of the case
the High Court was justified in reversing the finding of the
Motor Accident Claims Tribunal (for short ‘the Tribunal’),
which had directed the Insurance Company to first pay the
amount of compensation to the claimants and thereafter,
recover the same from the owner of the vehicle.
3. As per the claim petition, the deceased was travelling in
the tempo which was taken on rent on the occasion of Ganesh
Signature Not Verified
Digitally signed by
MINI
Date: 2026.02.17
Immersion festival and was heading to immerse the idol into
17:25:10 IST
Reason:
the Narmada River.
1
4. Indisputably, the tempo was a goods vehicle and was
insured with the respondent Insurance Company on the date of
accident. The Tribunal vide its award dated 11.01.2010 held
that the claimants would be entitled for compensation of
₹13,23,000/- (Rupees Thirteen Lakhs Twenty Three Thousand),
which shall be deposited by the Insurance Company, and the
same shall be recovered from the owner of the vehicle.
5. The Insurance Company preferred an appeal against the
said part of the award wherein the Tribunal had directed to
first pay and, thereafter, recover the same from the owner of
the vehicle.
6. In the impugned order, the High Court has set aside the
order of the Tribunal to hold that the Insurance Company is
not liable to first pay and then recover the amount of
compensation from the owner of the vehicle.
7. Shri Md. Tahir M. Hakim, learned counsel appearing for
the appellants-claimants would refer to this Court’s judgment
reported in Manuara Khatun & Ors. Vs. Rajesh Kumar Singh &
Ors.1 which, in turn, placed reliance on National Insurance
Company Limited vs. Saju P. Paul & Anr. 2, to argue that when
the deceased was a gratuitous passenger in a goods vehicle,
the Insurance Company can be directed to pay the amount and
recover the same from the owner of the vehicle.
8. Per contra, learned counsel appearing for the respondent
Insurance Company would refer to this Court’s judgment
1 .(2017) 4 SCC 796
2 .(2013) 2 SCC 41
2
reported in Amudhavalli & Ors. vs. HDFC Ergo General
Insurance Company Ltd. & Ors.3 to submit that this Court
having referred to Saju P. Paul (supra) has held that in a
case where the deceased was travelling in a goods vehicle on
rent, the Insurance Company cannot be fastened the liability
even to the extent of first pay and then recover.
9. We have heard learned counsel for the parties and perused
the record.
10. In the present case, the deceased was travelling in the
subject tempo along with Ganesh Idol, which was taken for
immersion in Narmada River. Thus, the dominant purpose for
hiring the vehicle was not for travelling but for carrying
the Ganesh idol for immersion. Travelling in the vehicle was
only incidental, therefore, at best, the deceased can be
treated as gratuitous passenger travelling with his goods
(Ganesh idol). This being the circumstance, we rely on the
judgment in the matter of Manuara Khatun & Ors. (supra),
wherein this Court has held thus in paragraph Nos. 15 and
16:-
“15. This question also fell for consideration
recently in National Insurance Co. Ltd. v. Saju P.
Paul [National Insurance Co. Ltd. v. Saju P. Paul,
(2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1
SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this
Court took note of entire previous case law on the
subject mentioned above and examined the question in
the context of Section 147 of the Act. While
allowing the appeal filed by the insurance company
by reversing the judgment [Saju P. Paul v. National
Insurance Co., 2011 SCC OnLine Ker 3791:2012 ACJ
1852] of the High Court, it was held on facts that
3 .2025 INSC 12193
since the victim was travelling in offending vehicle
as “gratuitous passenger” and hence, the insurance
company cannot be held liable to suffer the
liability arising out of accident on the strength of
the insurance policy. However, this Court keeping in
view the benevolent object of the Act and other
relevant factors arising in the case, issued the
directions against the insurance company to pay the
awarded sum to the claimants and then to recover the
said sum from the insured in the same proceedings by
applying the principle of “pay and recover”.
16. R.M. Lodha, J. (as his Lordship then was and
later became CJI) speaking for the Bench held in
paras 20 and 26 as under : (Saju P. Paul case
[National Insurance Co. Ltd. v. Saju P. Paul, (2013)
2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC
(Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 &
55)
“20. The next question that arises for
consideration is whether in the peculiar facts of
this case a direction could be issued to the
Insurance Company to first satisfy the awarded
amount in favour of the claimant and recover the
same from the owner of the vehicle (Respondent 2
herein).
26. The pendency of consideration of the above
questions by a larger Bench does not mean that
the course that was followed in Baljit Kaur
[National Insurance Co. Ltd. v. Baljit Kaur,
(2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa
Upendra Rao [National Insurance Co. Ltd. v.
Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC
(Cri) 357] should not be followed, more so in a
peculiar fact situation of this case. In the
present case, the accident occurred in 1993. At
that time, the claimant was 28 years old. He is
now about 48 years. The claimant was a driver on
heavy vehicle and due to the accident he has been
rendered permanently disabled. He has not been
able to get compensation so far due to the stay
order passed by this Court. He cannot be
compelled to struggle further for recovery of the
amount. The Insurance Company has already
deposited the entire awarded amount pursuant to
the order of this Court passed on 1-8-2011
[National Insurance Co. Ltd. v. Saju P. Paul
[National Insurance Co. Ltd. v. Saju P. Paul,
(2013) 2 SCC 41, 55 (footnote 14)]] and the said
amount has been invested in a fixed deposit
account. Having regard to these peculiar facts of
the case in hand, we are satisfied that the
4
claimant (Respondent 1) may be allowed to
withdraw the amount deposited by the Insurance
Company before this Court along with accrued
interest. The Insurance Company (the appellant)
thereafter may recover the amount so paid from
the owner (Respondent 2 herein). The recovery of
the amount by the Insurance Company from the
owner shall be made by following the procedure as
laid down by this Court in Challa Upendra Rao
[National Insurance Co. Ltd. v. Challa Upendra
Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357].”
11. Thus, in Manuara Khatun & Ors. (supra), this Court has
referred and approved Saju P. Paul (supra) case to hold that
when the victim was a gratuitous passenger, this Court issued
directions against the insurer of the offending vehicle to
first satisfy the awarded sum, and then to recover the same
from the insured in the same proceedings.
12. In the case of Amudhavalli & Ors. (supra), referred by
learned counsel for the respondent Insurance Company, the
deceased hired a goods vehicle for travelling and thus, it
was not a case where the goods vehicle was taken on rent for
carrying the goods, and travelling was incidental as
gratuitous passenger. Thus, the said case of Amudhavalli &
Ors. (supra), is distinguishable on facts; and the facts of
the present case is similar and closer to the one in the case
of Saju P. Paul (supra) and Manuara Khatun & Ors. (supra).
13. In the above view of the matter, we allow the Appeal and
set aside the impugned order of the High Court and restore
the award passed by the Tribunal.
14. No order as to costs.
5
15. If the respondent-Insurance Company has satisfied any
part of the award, the same shall be set off while
calculating the amount to which the Insurance Company shall
be liable to pay consequent upon our order.
16. Pending application(s), if any, shall stand disposed of.
…………………………………………………………J.
[PRASHANT KUMAR MISHRA]
…………………………………………………………J.
[N.V. ANJARIA]
NEW DELHI;
11th February, 2026
6
ITEM NO.16 COURT NO.17 SECTION III-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 21802/2023
[Arising out of impugned final judgment and order dated 23-12-2021
in FA No. 913/2011 passed by the High Court of Gujarat at
Ahmedabad]
KAMINIBEN & ORS. Petitioner(s)
VERSUS
THE ORIENTAL INSURANCE COMPANY LIMITED & ORS. Respondent(s)
Date : 11-02-2026 This petition was called on for hearing today.
CORAM : HON’BLE MR. JUSTICE PRASHANT KUMAR MISHRA
HON’BLE MR. JUSTICE N.V. ANJARIA
For Petitioner(s) :Mr. Md. Tahir M. Hakim, Adv.
Mr. Ejaz Maqbool, AOR
Mr. Mohsin M. Hakim, Adv.
Mr. Zain Maqbool, Adv.
Mr. Meeran Maqbool, Adv.
Mr. Saif Zia, Adv.
For Respondent(s) :Ms. Sakshi Mittal, AOR
UPON hearing the counsel the Court made the following
O R D E R
1. Leave granted.
2. The Appeal is allowed in terms of the signed order
placed on the file.
3. Pending application(s), if any, shall stand disposed
of.
(MINI) (CHETNA BALOONI)
COURT MASTER (SH) COURT MASTER (NSH)
7
