1
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.3565 OF 2011
JUDGMENT:
This MACMA is filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988, aggrieved by the order and decree dated 22.03.2011 passed in O.P.No.9 of 2008 by the Chairman, Motor Accident Claims Tribunal-cum-V Additional District Judge, Nalgonda at Miryalguda (for short "the Tribunal").
2. For convenience, the parties will be hereinafter referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that on 27.02.2007 at about 6.00 p.m., one Krishna (hereinafter referred to as "the deceased") was taken by the 1st respondent for unloading gravel (kankara) at Margadarsi School near Nakrekal in his Tractor and trailer bearing No.AP-24-J-5192 and AP-24-J- 5193, and after unloading the said gravel at Margadarsi School, while the said Tractor was proceeding to Nakrekal for the purpose of diesel, the driver of the said Tractor drove the said Tractor in a rash and negligent manner at high speed and in the said process, he could not control the vehicle and dashed to another Tractor coming in the opposite direction. As 2 a result, the deceased fell from the said Tractor and the said Tractor ran over the deceased, and thereby, he succumbed to injuries. The Police Nakrekal registered a case in Cr.No.41 of 2007 for the offences punishable under Sections 304-A IPC and 181 and 187 of M.V.Act. Before the accident, the deceased was hale and healthy, and he was doing stone-cutting work and used to earn Rs.4,500/- per month. Therefore, the petitioners, who are the parents of the deceased, filed the O.P. seeking compensation of Rs.3,00,000/-
4. The first respondent filed a counter denying the petition allegations. The second respondent filed a counter denying the petition allegations.
5. To prove the petitioners case, PWs.1 and 2 were examined and Exs.A1 to A5 and Ex.X-1 were marked. On behalf of the 2nd respondent, RWs.1 to 5 were examined and marked Exs.B1 to B5.
6. After hearing both sides and on consideration of the evidence, the Tribunal allowed the claim petition and awarded compensation of Rs.3,40,000/- along with interest @ 7.5% per annum from the date of petition till the date of payment along with costs and Advocate fee payable by the 3 respondents. Challenging the same, the present appeal is filed by the second respondent/Insurance Company.
7. Heard both sides. Perused the record.
8. Learned counsel appearing for the appellant/Insurance company inter-alia contended that the Tribunal utterly failed to see that as per Ex.B-5, the Registration Certificate of the Tractor bearing No.AP-24-J-5192 clearly shows that the seating capacity of the Tractor Engine is one i.e., the driver and the Insurance Company received the premium for the driver only. Therefore, the Insurance Company is not liable to pay compensation to the petitioners. The Tribunal miserably failed to see that RW.2, who was travelling on the Tractor Engine (Mudguard) at the time of the accident clearly stated that the deceased, another two persons, and himself sat on the Tractor Engine (Mudguard) at the time of the accident and the Insurance Company has not received the premium on the persons, who sat on the mudguard of the Tractor including the deceased and therefore, the Tribunal ought to have dismissed the O.P. as per the settled principles of law. The Tribunal utterly failed to see that the driver, who drove the Tractor and Trailer, did not have a driving licence, and the Police Nakrekal issued a chargesheet against the 4 driver for not having a driving licence at the time of the accident. The Tribunal ought to have dismissed the O.P. against the Insurance Company, and the Tribunal ought to have fixed the liability on the owner of the Tractor and Trailer alone. The Tribunal grossly erred in awarding compensation of Rs.3,40,000/-. Accordingly, prayed to allow the appeal.
9. Per contra, learned counsel for the claimants/petitioners submitted that the Tribunal has rightly awarded the compensation and no interference is required and prayed to dismiss the appeal.
10. A perusal of the impugned order discloses that the Tribunal, after considering the evidence of PWs.1 and 2 coupled with the documentary evidence i.e., Ex.A-1-FIR and Ex.A-5-charge-sheet rightly held that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. Therefore, there are no reasons to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle.
11. In the instant case, the petitioners claimed compensation of Rs.3,00,000/-, and the Tribunal awarded 5 compensation of Rs.3,40,000/-, which is more than the amount claimed by the petitioners.
12. Learned counsel appearing for the petitioners contended that just and reasonable compensation could be awarded to the petitioners. In support of his contention, learned counsel for the petitioners placed reliance on the judgment of this Court in D.KRISHNAVENI AND OTHERS Vs. MOHD.SIKANDER AND ANOTHER 1, wherein this Court held that 'just and reasonable compensation can be awarded and there is no restriction for compensation to amount actually claimed by the claimants and the Court has the power to grant it".
13. In the present case, the question is only with regard to the fixation of liability. The Tribunal fixed the liability on respondent Nos.1 and 2. Aggrieved by fixing the liability on the 2nd respondent, the present appeal is filed.
14. Learned counsel for the 2nd respondent contended that the Tribunal erroneously held that both the respondents are jointly and severally liable to pay compensation to the petitioners. But, respondent No.2/Insurance Company has resisted the claim petition, stating that the Registration 1 2009 (6) ALT 620 6 Certificate of the Tractor bearing No.AP-24-J-5192 clearly shows that the seating capacity of the Tractor Engine is one i.e., the driver and the Insurance Company received the premium for the driver only. Therefore, the Insurance Company is not liable to pay compensation to the petitioners. In support of his contention, learned counsel for the 2nd respondent relied upon the judgments of the Hon'ble Supreme Court in National Insurance Company Limited vs Swaran Singh & others 2 and Shamanna V. Divisional Manager, the Oriental Insurance Co. Ltd 3 and also the judgment of the Madras High Court in DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED Vs. RATHIKA AND OTHERS 4, wherein the Madras High Court held as follows :-
"6. The learned counsel appearing for the appellant / Insurance Company submitted that the Tractor is a single seated vehicle and the Tractor is not a goods vehicle. The Tractor is permitted to be used only for agricultural purpose. By permitting the deceased Kannammal and few others to sit on the mudguard of the Tractor, the third respondent/ owner of the vehicle violated the terms and conditions of the Insurance Policy. Therefore, the owner of the vehicle alone is liable to pay the compensation. Fastening of liability on the Insurer to pay the compensation is not proper and hence, the same is liable 2 2004 (3) SCC 297 3 2018(9) (SC) 3726 4 2022 ACJ 1585 7 to be set aside. Though the appellant/Insurance Company disputed the entire liability, the Tribunal has ordered pay and recovery holding that the counsel for the Insurance Company has argued only for pay and recovery. The appellant / Insurance Company has never accepted for pay and recovery and therefore, the said finding of the Tribunal is liable to be set aside and consequently, the appellant/Insurance Company is liable to be exonerated from entire liability."
15. Learned counsel appearing for the 2nd respondent also relied upon the judgment of the Madras High Court in BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, DHARMAPURI Vs. KAMATCHI AND OTHERS 5, wherein the Madras High Court held as follows :-
"The Tribunal considering the pleadings, oral and documentary evidence held that the accident occurred only due to rash and negligent driving by the 2nd respondent and directed the appellant-Insurance Company to pay a sum of Rs.1,18,000/- as compensation to the 1st respondent at the first instance and recover the same from the 2nd respondent."
16. Upon bare reading of the impugned order, it is observed that the Tribunal found that both the respondents are liable to pay compensation to the petitioners. The Hon'ble Supreme Court in Swaran Singh (supra) and in the catena of decisions directed the Insurance Company to pay the 5 2021 ACJ 71 8 compensation, and liberty is granted to it to recover the paid amount from the owner of the vehicle in case of violation of conditions of Insurance Policy. In Shamanna (supra), the Hon'ble Supreme Court held as under:
11. In the present case, to deny the benefit of 'pay and recover', what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two- Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that "if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle". The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case."
12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation 9 amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that "....that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
17. In the present case also, the deceased was sitting on the mudguard and due to the accident, he fell and succumbed to the injuries. Applying the above decisions to the present case and considering the submission of both the counsel, this Court is of the considered view that the Tribunal erred in holding that respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the petitioners. It is 10 just and proper to direct the 2nd respondent/Insurance to pay the compensation amount to the petitioners at the first instance and recover the same from respondent No.1 as it is established that the policy issued by the 2nd respondent in favour of the 1st respondent was very much in force as on the date of the accident.
18. Therefore, the 2nd respondent/Insurance Company is directed to pay the compensation amount to the petitioners, as determined by the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the petitioners are permitted to withdraw their respective share amounts as apportioned by the Tribunal. The 2nd respondent/Insurance Company is at liberty to recover the said amount from the 1st respondent/owner of the vehicle in accordance with law.
19. Accordingly, the M.A.C.M.A. is allowed to the extent indicated above. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 20th day of November, 2023 Prv