THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No. 3388 of 2019
JUDGMENT:
M/s. HDFC ERGO General Insurance Company Limited, respondent No. 2 before the Tribunal, preferred this appeal challenging the order and decree, dated 28.06.2019, passed in M.V.O.P. No. 233 of 2017 on the file of the Motor Accident Claims Tribunal-cum-IX Additional Chief Judge, City Civil Court at Hyderabad. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the tribunal.
The claimant, respondent No. 1 herein, filed the O.P. claiming compensation of Rs.15,00,000/- for the injuries suffered by him in the motor accident that took place on 23.12.2016. According to the claimant, on 23.12.2016, at about 7:00 p.m., while he was returning home on his motorcycle, when he crossed NH-65 in front of Saki Tank from market Kaman side, the offending vehicle i.e., lorry bearing No. AP 29 TC 0708, owned by respondent No. 1, insured with respondent No. 2, being driven by respondent No. 3 in a rash and negligent manner, dashed the motorcycle, as a result of which, he fell down and received injuries. He was treated as inpatient at Yashoda Hospital, underwent major surgery and his left foot below knee level was amputated. He had incurred an amount of Rs.2,50,000/- towards medical expenditure and due to the 2 amputation, he suffered permanent disability. Therefore, he laid the claim against the respondents under various heads.
Before the tribunal, while the respondent Nos. 1 & 3 remained ex parte, the respondent No. 2 contested the claim petition by filing counter denying the manner in which the accident took place, the income of the claimant and the compensation claimed being excessive. Considering the claim and the counter filed by the Insurance Company and on evaluation of the evidence, both oral and documentary, the learned Tribunal has allowed the O.P. in part awarding total compensation of Rs.14,43,000/- with 9% interest per annum, holding the owner of the offending vehicle, driver and the insurance company jointly and severally liable to pay the compensation.
Heard the learned Standing Counsel for the appellant and the learned counsel for the claimant-respondent No. 1 herein. Perused the material available on record.
Now, the main contention of the learned Standing Counsel for the appellant is that the appellant-Insurance Company is not liable to pay any compensation inasmuch as the driver of the offending vehicle was possessing only light motor vehicle license i.e., LMV (NT), but he was driving heavy goods vehicle at the relevant time of accident. Thus, as there was breach of terms and conditions of the 3 insurance policy, the learned Tribunal ought not to have fastened liability on the Insurance Company. It is further contended that in the circumstances of the case, the learned Tribunal ought to have directed the Insurance Company to pay the compensation in the first instance and granted liberty to recover the same from the owner of the offending vehicle, for the breach of terms and conditions of the policy. As regards the quantum of compensation, it is contended that the tribunal ought not to have fixed the disability at 60% as was claimed by the claimant and that the amount of compensation awarded is excessive and exorbitant.
On the other hand, learned counsel appearing for respondent No. 1-claimant, contended that the compensation awarded by the learned Tribunal is just and reasonable and needs no interference by this Court. Even on the point of liability, it is contended that considering the circumstances of the case, the tribunal has rightly fixed the liability on all the respondents jointly and severally inasmuch as Ex.B. 1 policy was in force as on the date of accident.
The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged by either of the respondents.
As regards the quantum of compensation, the medical evidence discloses that the claimant suffered grievous crush injury of 4 left foot following A/H/OR.T.A., extensive loss of soft tissue; dislocation of multiple bones of foot, ankle and vascular injury of left foot. He was treated at Yashoda Hospital as inpatient from 24.12.2016 to 28.12.2016 where, his left leg below the knee level was amputated. Ex.A.6 to A.8 are the medical bills which disclose that the claimant had spent a sum of Rs.1,82,427/- which is substantiated by the evidence of P.W.3, the Billing Manager of Yashoda Hospital. P.W.2, the Orthopedic Surgeon in Yashoda Hospital, P.W.4, Orthopedic Surgeon, who is one of the members of the Medical Board, stated that the claimant had sustained 60% permanent disability and Ex.A.10 is the disability certificate issued to that effect. Ex.A.11 is the salary certificate, which reflects that the claimant was working as Machine Operator and was being paid salary of Rs.10,140/- per month which is also substantiated by the evidence of P.W.5, employer. In these circumstances, the amount of Rs.14,43,000/- awarded by the tribunal towards compensation under various heads, cannot be said to be excessive, more particularly, when the claimant had sustained 60% permanent disability on account of amputation of left leg below knee level. Therefore, this Court is not inclined to interfere with the quantum of compensation awarded by the tribunal. As regards the interest, the tribunal has awarded interest at the rate of 9% per annum, which is exorbitant. Following the decision of the Apex Court in Rajesh and 5 others v. Rajbir Singh and others1, the claimant is entitled to interest @ 7.5% per annum on the compensation awarded by the Tribunal from the date of petition till realization. Hence, the interest granted by the Tribunal @ 9% per annum is reduced to 7.5% per annum on the awarded amount of Rs.14,43,000/- from the date of petition till the date of realization.
Coming to the aspect of liability, admittedly, the crime vehicle is a heavy goods vehicle. In this regard R.W.2, the official of RTA was examined on behalf of the insurance company, who categorically deposed that to drive the offending vehicle, the driver must possess heavy transport vehicle licence. However, as seen from Ex.B.2, the extract of driving licence of respondent No. 3, driver, the driving licence possessed by him stood lapsed by 11.02.2016 and whereas the accident occurred on 23.12.2016 and even that licence possessed by him was not to drive heavy goods vehicle such as crime vehicle. Thus, the insurance company with clinching evidence has established that there was violation of conditions of Ex.B. 1 policy by the owner of the offending vehicle. Thus, as there was breach of terms and conditions of the insurance policy, the learned Tribunal ought not to have fastened liability on the Insurance Company. But the fact remains that Ex.B. 1 policy was in force as on the date of the accident. In the circumstances of the case, the learned Tribunal 1 2013 ACJ 1403 = 2013 (4) ALT 35 6 ought to have directed the Insurance Company to pay the compensation in the first instance and granted liberty to recover the same from the owner of the offending vehicle, for the breach of terms and conditions of the policy by invoking the doctrine of pay and recover. Therefore, the finding of the learned Tribunal in fixing the liability jointly and severally upon the insurance company is liable to be set aside. In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh and others2, 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 case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others3, following its earlier decision in Swaran Singh (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 2 (2004) 3 SCC 297 3 2018 ACJ 2163 7 amount from the owner of the offending vehicle after paying the amount.
Accordingly, while maintaining the quantum of compensation awarded by the tribunal, the interest is hereby reduced to 7.5% from 9% per annum on the compensation amount. The finding of the learned Tribunal to the extent of fixing the liability jointly and severally upon the insurance company is hereby set aside. However, following the doctrine 'pay and recover', the Insurance Company is directed to pay the enhanced compensation amount to the claimant in the first instance and thereafter recover the same from the owner of the offending vehicle, respondent No. 1 without initiating any separate proceedings.
The appeal is allowed in part as indicated above. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
____________________________ JUSTICE M.G.PRIYADARSINI 28.11.2022 tsr 8 THE HON'BLE JUSTICE G. SRI DEVI M.A.C.M.A. No. 3388 of 2019 DATE: 28-11-2022