THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
MACMA.No.3007 of 2009
JUDGMENT:
The appellant-New India Assurance Company Limited (insurer) is the respondent No.2 in OP.No.180 of 2006 on the file of the Motor Accident Claims Tribunal cm I Additional District Judge, Karimnagar. The respondents No.1 to 5 are the claimants and the respondent No.6 (owner of the offending vehicle) is respondent No.1 in the OP.
2. The parties are referred to as they were arrayed in the original petition.
3. The claimants No.1 to 5 are the legal heirs of the deceased, Hussain Bin Abdullah, who was pillion rider on the vehicle driven by one Syed Khader. On 22.05.2003, in the evening, the deceased and the Syed Khader were going on a scooter bearing No.AP 15 T 5979 to Bommakal bypass road to the office of the Lorry Owners Association. After completing of their work, while they were returning, the deceased, who was sitting as pillion rider, fell down form the scooter when the driver of the scooter drove the vehicle at a high speed in a rash and negligent manner and lost control over it. Both the driver and the pillion rider received injuries. The deceased was shifted to Government Hospital, Karimnagar and thereafter, he was shifted to a private hospital viz. PIMS, Karimanagar, where the deceased died while undergoing treatment. The Karimnagar Rural Police registered a case in Cr.No.158 of 2003 under Section 304-A IPC against the driver of the scooter but closed the case as abated after the death of the driver of the scooter. The deceased was stated to be 30 years and working as lorry driver in Mama Transport and Roadways and earning 2 Rs.3,500/- per month as wages. Hence, the claimants claimed compensation of Rs.4,64,000/-.
4. The respondent No.1-owner of the vehicle remained ex parte. The respondent No.2-insurance company filed counter denying the averments in the claim petition regarding the manner of the accident and the age, income and occupation of the deceased. It was asserted that unless it is proved that the driver of the vehicle and the owner of the vehicle have effective driving license, the insurance company is not liable to pay compensation. It was also asserted that the claimants manipulated the case against the insured vehicle and filed a case to get compensation.
5. The tribunal below, on appreciation of oral and documentary evidence, awarded compensation of Rs.2,68,700/- along with interest at 7.5% per annum.
6. The rider of the vehicle died and the owner of the vehicle remained ex parte. Thus, no evidence was adduced including the production of driving license of the respondent No.1. However, relying on the judgment of the Supreme Court in Oriental Insurance Company Ltd. v. Nanjappan [AIR 2004 SC 1630], the tribunal below held that the insurance company is liable to pay the compensation at the first instance and recover the same from the owner. The principle of pay and recover has been reiterated by the Supreme Court in NATIONAL INSURANCE CO. LTD. v. SWARAN SINGH1.
7. Insofar as the income of the deceased is concerned, the tribunal below fixed the notional income at 1800/- per month. The deceased was stated to be working as a lorry driver and earning Rs.3,500/- per 1 (2004) 3 SCC 297 3 month. The claimants relied on Ex.A4, driving licence of the deceased, to show that the deceased was having transport license of heavy goods vehicle. The tribunal below referred to labour guide and basing on G.O.Ms.No.30 dated 27.07.2000 wherein the minimum salary of the heavy vehicle driver is fixed as Rs.3,700/- per month. The tribunal below did not give much weight to the evidence of P.W.2, who is the employer of the deceased. However, taking into consideration the fact that the deceased was having licence to drive heavy goods vehicle, the tribunal below fixed the notional income at Rs.1,800/- per month and by deducting 1/3rd out the same, the contribution to the family was fixed at Rs.1,200/- for the purpose of determining total compensation and accordingly, awarded Rs.2,68,700/- including funeral expenses, loss of estate and loss of consortium with interest at 7.5% per annum.
8. Mr. Katta Laxmi Prasad, learned counsel for the appellant, contended that the principle of pay and recover cannot be applied to this case, as the driving license of the rider of the vehicle and the owner of the vehicle is not produced in the Court and adverse inference has to be drawn in that regard. Further, it is also argued that the insurance policy in the instant case is an act policy and not comprehensive policy, as such, covers only third party and the deceased is not a third party.
9. This Court is not convinced with such argument. The deceased was a pillion rider and not a family member of the owner of the vehicle. Thus, he is a third party. Regarding non-production of the driving license, the deceased cannot be held responsible for such lapses. Hence, the principle of pay and recover applies to the instant case. The insurance company is liable to pay the compensation awarded by the tribunal below. It is needless to mention that the 4 insurance company is entitled to recover the compensation amount from the owner of the vehicle for violation of the terms of the insurance policy, if any. In the circumstances, this Court does not find any merit in the appeal.
The civil miscellaneous appeal is dismissed. Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J April 23, 2021 DSK