THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No. 2148 of 2015
JUDGMENT:
This appeal is preferred by the National Insurance Company Limited, questioning the order and decree, dated 07.01.2011 made in O.P.No.1104 of 2005 on the file of the Motor Accidents Claims Tribunal (I Additional District Judge), at Nizamabad (for short, the Tribunal).
2. For the sake of convenience, hereinafter, the parties are referred to as per their array before the tribunal.
3. The claimants filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.4,00,000/- for the death of the deceased, Sonmenkar, who died in a motor vehicle accident that occurred on 22.11.2004. According to the claimants, on the fateful day, while the deceased was travelling on Tractor and Trailer bearing No.AP 22 U 5412 and AP 22 U 5413, as a labourer from Navipet to Savergaon with harvested paddy plantations and when the tractor reached the limits of Yamcha Village Shivar, the driver of the tractor drove the 2 MGP, J Macma_2148_2015 same in a rash and negligent manner, as a result the deceased fell down from the tractor and sustained grievous injuries as the tractor ran over him. Immediately, the deceased was shifted to Government Hospital, Basar, and while undergoing treatment, he succumbed to injuries. Since the accident occurred due to negligence of the driver of the Tractor & Trailer, owned by respondent No.1 and insured with respondent No.2, the claimants filed the claim-petition seeking compensation of Rs.4.00 lakhs towards compensation under various heads.
4. Before the Tribunal, while the respondent No. 1, owner of the offending vehicle, stood ex parte, the respondent No. 2 contested the claim denying the averments of the claim petition, including the age, avocation and income of the deceased and contended that the amount claimed is excessive and prayed to dismiss the claim petition.
5. After considering the claim, counter and the evidence, both oral and documentary brought on record, 3 MGP, J Macma_2148_2015 the tribunal has allowed the O.P. in part awarding a sum of Rs.3,14,520/- towards compensation with interest at 7.5% thereon to be paid by the respondent Nos.1 and 2 jointly and severally. Hence, the insurance company filed the present appeal challenging the quantum of compensation as well as its liability to pay the compensation.
6. Heard both sides and perused the record.
7. Learned Standing Counsel appearing for the appellant, insurance company has submitted that since there are only two dependents of the deceased, the Tribunal ought to have deducted 1/3rd towards personal expenses of the deceased but not 1/5th. It is further submitted that since the deceased was labourer and as no premium was paid to cover the risk of the labourer, the insurance company is not liable to pay the compensation and at the most the Tribunal ought to have invoked the doctrine of pay and recover.
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8. Learned counsel appearing for the claimants has submitted that the Tribunal has awarded just compensation. It is contended that in fact, the Tribunal has not added the future prospects to the established income of the deceased and had the future prospects were added, the claimants would have got more compensation than the one awarded by the Tribunal and therefore, even though the tribunal has deducted 1/5th towards personal expenses of the deceased, the quantum of compensation need not be disturbed. As regards the liability, it is contended that since the premium was collected for the trailer towards third party risk, the Tribunal has rightly fastened liability on the insurance company as well and therefore, the impugned order needs no interference by this Court.
9. With regard to the manner of the accident, P.W.2, eyewitness to the accident, has specifically deposed that due to the negligent driving of the tractor by its driver, the deceased fell down from the tractor and sustained injuries 5 MGP, J Macma_2148_2015 on account of tractor running over him. Though he was cross-examined at length, nothing contra to disbelieve his evidence was elicited. Further, police after due investigation, laid the charge sheet against the driver of the tractor. Therefore, considering the evidence of P.W.2, coupled with documentary evidence Exs.A.1 & A.2, the tribunal has rightly held that the accident took place only due to the rash and negligent driving of the tractor by its driver, which needs no interference by this Court.
10. As regards the quantum of compensation, as rightly pointed out by the learned Standing Counsel, as there are two dependents, the Tribunal ought to have deducted 1/3rd towards personal deducting but not 1/5th. However, considering the decision of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, if future prospects at 25% was added to the assessed income of the deceased, the claimants would have got more compensation than the one awarded 1 2017 ACJ 2700 6 MGP, J Macma_2148_2015 by the Tribunal. Such being the case, this Court is not inclined to interfere with the quantum of compensation awarded by the Tribunal.
11. Insofar as the liability is concerned, as seen from Ex.B1, premium was paid only in respect of third party but not covering the risk of labourer. Even as per the contents of the O.P., the deceased was proceeding on trailer as labourer at the time of the accident. Therefore, the deceased cannot be treated as third party but he can be treated as gratuitous passenger. In Anu Bhanvara v. Iffco Tokio General Insurance Company Limited2, the Hon'ble Supreme Court dealt with the similar issue by referring its earlier judgments in National Insurance Co. Ltd. V. Baljit Kaur3 and Manuara Khatun and others v. Rajesh Kumar and others4 apart from other judgments, invoked the principle of 'pay and recover', in the peculiar facts and circumstances of the case. In the facts and circumstances of the case, since there was violation of policy conditions by 2 Laws (SC) 2019 840 3 2004 ACJ 428 4 (2017) 4 SCC 796 7 MGP, J Macma_2148_2015 the respondent No. 1, this court is inclined to apply the doctrine of pay and recover.
12. Accordingly, the M.A.C.M.A. is allowed in part confirming the compensation awarded by the Tribunal. However, following the doctrine 'pay and recover', the Insurance Company-appellant is directed to pay the compensation amount to the claimants, at the first instance and thereafter recover the same from the owner of the offending vehicle without initiating any separate proceedings. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI 05.01.2023 Tsr 8 MGP, J Macma_2148_2015 THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A. No. 2148 of 2015 DATe: 05-01-2023