THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No. 1243 of 2015
JUDGMENT:
This appeal is preferred by Royal Sundaran Alliance Insurance Company Limited, questioning the order and decree, dated 19.11.2012 passed in M.A.T.O.P.No.568 of 2011 on the file of the Motor Accident Claims Tribunal-cum-V Additional District Judge (Fast Track Court) at Kothagudem (for short, the Tribunal).
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.1,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 06.03.2010. It is stated that on 06.03.2010 while the claimant was proceeding on a motorcycle, along with his brother, at about 21:30 hours, when they reached near Burgudem Village, the crime vehicle i.e., Tipper bearing No. AP 20W 6408, owned by respondent No. 1 and insured with respondent No. 2, appellant herein, being driven by its driver in a rash and negligent manner at high 2 MGP, J Macma_1243_2015 speed, dashed against the motorcycle, as a result of which, the claimant sustained multiple injuries. Therefore, he laid the claim against the respondents seeking compensation of Rs.1,00,000/- under various heads.
4. Considering the claim and the counter filed by the respondent No. 2, insurance company, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has allowed the O.P. in part awarding compensation of Rs.62,000/- with interest at 7.5% per annum. However, for the violation of terms and conditions of the policy, the respondent No. 2 was directed to first pay the compensation and then recover the same from the respondent No. 1. Challenging the same, the present appeal has been filed by the insurance company.
5. Heard both sides and perused the record.
6. A perusal of the impugned judgment discloses that the Tribunal has framed issue No.1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, and after considering the evidence of P.W.1 coupled with the documentary evidence i.e., Ex.A1, First Information Report and Ex.A2, charge sheet, the tribunal has categorically observed 3 MGP, J Macma_1243_2015 that the accident has occurred due to the rash and negligent driving of the crime Tipper by its driver and has answered the issue in favour of the claimant and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the Tipper by its driver.
7. The main contention of the learned Standing Counsel for the appellant is that the driver of the offending vehicle was not having valid driving license at the time of the accident, which has been proved by the evidence of R.W.2, and as there was breach of terms and conditions of the Policy, the Insurance Company is not liable to pay the compensation. It is no-doubt true that by examining R.Ws.1 and 2, the appellant-insurance company has sufficiently established the fact that the driver of the offending vehicle was not holding valid driving licence and there was breach of terms and conditions of the policy. But the fact remains that by the time of accident, the offending vehicle was insured with the appellant and Ex.B.1 policy was very much in force. In the case of third party risks, as per the decision in National Insurance Company Ltd. V. Swaran 4 MGP, J Macma_1243_2015 Singh and others1, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Recently, the Apex Court in the case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others2, following its earlier decision in Swaran Singh (6 supra), reiterated that "even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount." In view of the above, the tribunal was right in directing the appellant to pay the compensation amount at the first instance 1 (2004) 3 SCC 297 2 2018 ACJ 2163 5 MGP, J Macma_1243_2015 and then recover the same from the owner of the vehicle and the said findings needs no interference by this Court.
8. Insofar as the quantum of compensation is concerned, a perusal of the medical record i.e., Ex.A.3, Medical Certificate, reveals that the claimant had sustained the following injuries:-
(i) Fracture of left fibula shaft;
(ii) Injury on parietal region;
(iii) Injury on left leg; and
(iv) Simple injuries all over the body.
Further, P.W.2, the treating doctor, has deposed that the claim petitioner suffering from limping and shortening of 2 inches and suffered disability of 20%. However, no such disability certificate was produced before the tribunal and therefore, the claim of disability suffered by the claimant was rightly rejected by the tribunal. Taking into consideration the nature of injuries, period of treatment and the medical bills, the Tribunal has rightly awarded an amount of Rs.62,000/- with interest @ 7.5% per annum. Therefore, I see no reason to interfere with the award passed by the Tribunal and the appeal is liable to be dismissed.
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9. Accordingly, the M.A.C.M.A. is dismissed confirming the award and decree passed by the Tribunal. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI 10.11.2022 tsr 7 MGP, J Macma_1243_2015 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No. 1243 of 2015 DATE: 10-11-2022