Telangana High Court
United India Insurance Company Ltd., vs P Sathaiah And 2 Others on 27 February, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.2112 of 2017
JUDGMENT:
1. Aggrieved by the Award dated 22.02.2016 passed by the Chairman, Motor Accidents Claims Tribunal-cum-XXVII Additional Chief Judge, City Civil Court, Hyderabad (for short, the Tribunal), in M.V.O.P.No.585 of 2012, Respondent No.2/Insurance company has filed the present Appeal seeking to set-aside the order of the learned Tribunal.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The brief facts of the case are that the petitioner No.1 is the father and petitioner No.2 is the mother of the deceased- P.Shiva Kumar. As stated by the petitioners, on 24.06.2012 at about 12.30p.m., while the deceased was returning from bus depot after completion of his duty and while he was walking on the road and when reached near Musheerabad bus depot at B.E. Limited Company on foot path, suddenly, one scooter bearing No.AP-11F- 2932 came in a rash and negligent manner with high speed on wrong side of the road and dashed the deceased. As a result, the deceased received grievous injuries besides multiple fractures all over his body. Immediately, he was shifted to Osmania General 2 MGP,J MACMA.NO.2112 of 2017 Hospital and was admitted as inpatient and later, he was shifted to RTC Hospital, Tarnaka and when his condition became very serious, he was shifted to Image Hospital, Ameerpet and while undergoing treatment, he died on 27.06.2012. Police registered FIR under Sections 337 and 304A IPC and took up investigation. It is further stated by the petitioners that the deceased was aged 30 years and was hale and healthy at the time of accident and is working as RTC Bus Conductor in APSRTC, Musheerabad depot, Hyderabad and was earning an amount of Rs.8,647/- per month and due to sudden demise of deceased, the petitioners lost their bread winner and their family became destitute and hence, filed a petition claiming compensation of Rs.10,00,000/-.
4. Respondent No.1-owner of the crime vehicle, did not contest the case and remained exparte. Respondent No.2-Insurance company filed its counter and denied the averments of the claim petition including, cause of incident, occurrence of accident, age, wages and also contended that the accident occurred only due to the negligence of the deceased and there was no rash and negligence on part of the rider of the scooter and further contended that the rider of the scooter-Sri R.Narsimha Rao was not made as necessary party to the proceedings and hence, the petition is not maintainable for mis-joinder of necessary parties and hence, liable 3 MGP,J MACMA.NO.2112 of 2017 to be dismissed and that the claim of compensation is excess and exorbitant and prayed to dismiss the claim petition.
5. Based on the above pleadings, the learned Tribunal framed issues and conducted trial. Before the Tribunal, the 1st petitioner was examined as PW1 and got examined PW2 and got marked Exs.A1 to A10 on their behalf. On behalf of respondent No.2, RWs 1 & 2 were examined and Exs.B1 & B2 and Exs.X1 and X2 were marked.
6. After considering the evidence and documents filed by both sides, the learned Tribunal had awarded compensation of Rs.11,30,000/- along with interest. Aggrieved by the same, the present appeal by Respondent No.2/Insurance Company.
7. Heard the submission of Sri A.Rama Krishna Reddy, learned Standing counsel for Insurance company as well as Sri Indrasena Reddy, learned counsel for respondents.
8. The main contention of the learned Standing Counsel for Insurance company is that the rider of the scooter was not having driving license as on the date of accident as the driving license was expired and that a case has been registered by the Police under Section 337 and 304-A IPC and charge sheet was filed under Section 181 of M.V.Act and further, contended that the learned 4 MGP,J MACMA.NO.2112 of 2017 Tribunal failed to appreciate the fact that as the deceased, being Bachelor, instead of deducting 50% income towards his personal expenses as per settled law reported in the case of Sarla Verma Vs.Delhi Transport Corporation 1, it deducted 1/3 amount, which is contrary to the settled law and hence, prayed to allow the appeal by setting aside the order of the learned Tribunal.
9. Per contra, learned Standing counsel for respondent argued that the learned Tribunal after considering all the aspects has awarded just and reasonable compensation for which interference of this Court is unwarranted.
10. Now the point that arise for consideration is, Whether the order of the learned Tribunal suffers from any irregularity?
11. This Court has perused the entire evidence and documents filed by both sides. The 1st petitioner, who is the father of the deceased, reiterated the contents of the claim petition and deposed about the manner of accident. As PW1 is not an eye witness to the accident, he got examined PW2, who is an eye witness to the accident and he deposed that on 24.06.2012, at about 12.30a.m. while he was standing at BE Limited Company, Musheerabad, he 1 2009 ACJ 1298 5 MGP,J MACMA.NO.2112 of 2017 noticed one person who is walking on the road and suddenly one scooter bearing No.AP-11F-2932 came in a rash and negligent manner at high speed and dashed the deceased. As a result, the deceased sustained grievous injuries besides multiple injuries all over the body. Immediately, he was shifted to Osmania General Hospital in '108' Ambulance and later, he came to know that the deceased died due to the said injures.
12. In the cross-examination, he stated that he witnessed the accident at a distance of 20 feet from the road. Though PWs 1 & 2 were cross-examined at length, nothing worthy was elicited to disbelieve their evidence. Therefore, considering the evidence of PW2, who is an eye witness to the accident, the police laid charge sheet against the driver of the scooter.
13. The another aspect that was argued by the learned Standing Counsel for Insurance company is that the rider of the scooter is not having valid driving license as on the date of accident and the same was expired. In order to prove the same, the 2nd respondent/Insurance company got examined RWs 1 & 2 and got marked Exs.X1 and X2 -Driving license abstract. In the cross- examination, RW1 denied the suggestion that he is not the competent authority to speak about the driving license. However, he stated that based on Ex.X2-Driving license abstract and as per 6 MGP,J MACMA.NO.2112 of 2017 Ex.X1-authorization letter, he is deposing in the court. RW2, who is the Assistant Manager of Insurance Company, deposed that Ex.B2 policy was in force as on the date of accident and the deceased is the third party to the accident and it covers the third party risk. The learned Tribunal, though accepted the fact that the driving license as per Ex.X2 -driving license abstract for license No.66731993 has been expired, but by relying upon the judgment of the Hon'ble Supreme Court in S.Iyyapan Vs.United India Insurance Co.Ltd. 2, has awarded compensation by fastening the liability against respondent Nos.1 & 2, who are the owner and insurer of the crime vehicle.
14. This Court is of the considered opinion that when it is proved through RWs 1 & 2 that the driving license was expired as on the date of accident and driver is not holding driving license, fastening the liability against respondent No.2-Insurance company can be set-aside and this Court is inclined to adopt pay and recovery policy as per the decision of the Hon'ble Supreme Court reported in Oriental Insurance Co. Ltd. Vs. Shri Nanjappan And Ors. 3, wherein, the Hon'ble Court held as under:- 2
2013(5) ALD 62(SC) 3 AIR 2004 Supreme Court 1340 7 MGP,J MACMA.NO.2112 of 2017 "... ... ... We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for insurer to file a separate suit but it may initiate a proceeding before the 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. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the tribunal in such a proceeding."
15. With the above observation, the MACMA is partly allowed. There shall be no order as to costs.
16. Miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Dt.27.02.2024 ysk