Telangana High Court
Kothapally Ranuka And 2 Others vs Ashok Kumar And 2 Others on 23 January, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
M.A.C.M.A.No.1335 OF 2019
JUDGMENT :
Being aggrieved by the Judgment dated 25.06.2015 in O.P.No.170 of 2012 on the file of Motor Accident Claims Tribunal-cum-IV Additional District Judge, Siddipet, whereunder the Tribunal allowed their petition in part and awarded a sum of Rs.20,56,132/- with proportionate costs against their claim for Rs.25,00,000/- directing respondent Nos.1 and 2 only, the petitioners in the above referred original petition have filed this appeal under Section 173 of M.V.Act and sought for enhancement of the compensation to Rs.25,00,000/- and also for fixing the liability against the 3rd respondent/insurance company on the following grounds:
The Tribunal failed to appreciate the evidence and committed an error in fixing the liability against respondent Nos.1 and 2 and exonerating the 3rd respondent-insurance company. The Tribunal failed to 2 appreciate the law by which already the Apex Court held in many cases that the Court can direct the insurance company to pay compensation and recover the same from the owner of the vehicle. The Tribunal having appreciated the fact that the respondent Nos.1 to 3 being driver, owner and insurer of the offending vehicle ought to have fastened the liability against all the respondents without exonerating the insurance company and they have also claimed that the Tribunal has taken a lenient view by fixing the liability on the 2nd respondent and exonerating the insurance company for payment of compensation.
2. As per the petition filed by the appellants herein it was specifically claimed that on 22.07.2012 the husband of 1st appellant, son of the other two appellants namely Kothapally Ravikanth Kumar (hereinafter be referred as deceased) was proceeding from Somakkapet to Gajwel on his motorbike bearing No.AP-23-R-4486 and on his way at about 02:15 p.m., when he reached outskirts of Anthagiripally, the driver of a lorry bearing No.RJ-11-GA- 0537 drove his lorry in a rash and negligent manner, in 3 high speed and dashed the motorbike, due to which the deceased received fatal injuries and died on the spot. The appellants have filed claim petition against the driver, owner and insurer of the said lorry.
3. The driver and owner of the lorry remained exparte. The 3rd respondent opposed the claim. The 3rd respondent has contended that there was no such rash or negligent driving of the lorry and the accident took place in view of the negligence of the deceased itself. They have also claimed that a false case has been filed before the police. The respondent No.3 has disputed the issuance of policy against the said vehicle.
4. As could be seen from the additional counter filed by the 3rd respondent, it was further claimed that respondent No.1/driver was not possessing valid driving licence at the time of accident. The 3rd respondent has claimed that they have obtained the copy of driving licence of respondent No.1 and their investigation revealed that the said driving licence is fake and not issued by the Transport Authority. The 2nd respondent having allowed respondent No.1 who 4 has no valid licence to drive the lorry, thereby it amounts to violation of policy conditions, as such sought for dismissal of the petition.
5. The Tribunal framed the following (4) issues in the first instance:
1. Whether the accident had occurred due to rash and negligent driving of driver of the crime vehicle lorry bearing No.RJ-11-GA-0537?
2. Whether the petition is bad for non-joinder of the owner and insurance company of Motorcycle bearing No.AP-23-R-4486?
3. Whether the claimants are entitled for the compensation, if so, what extent and from whom?
4. To what relief?
6. In view of the additional counter filed by respondent No.3, the following additional issue was also framed by the Tribunal:
Whether the accident had occurred due to rash and negligent driving of driver of the crime vehicle lorry bearing No.RJ-11-GA-0537?5
7. During trial, the wife of the deceased was examined as PW1. She has examined two more witnesses through Exs.A1 to A7 were marked. The 3rd respondent was examined RWs 1 and 2 and marked Exs.B1 to B4.
8. The Tribunal having considered the income of the deceased and after deducting 1/3 of the said income towards personal expenditure, and by applying appropriate multiplier, came to the conclusion that the appellants herein are entitled to a sum of Rs.20,56,132/-. However, in view of the defense taken by the 3rd respondent against the driver of the vehicle recorded a finding that the 1st respondent was not having valid driving licence, the 2nd respondent having allowed such a driver to drive lorry, violated the policy conditions. Therefore, the Tribunal allowed the petition only against respondent Nos.1 and 2 and exonerated the insurance company.
9. As could be seen from the evidence produced by 3rd respondent through RWs 1 and 2 and Exs.B1 to B4, the Court below came to conclusion that the particulars of the driving licence of the 1st respondent mentioned in Ex.A5 6 M.V.report are false and there was no such driving licence from the concerned Road Transport Authority (RTA). To come to such a conclusion the Court below relied on the evidence of RWs 1 and 2.
10. As per the material documents placed by the insurance company it shows when RW1 forwarded the licnecne particulars of the offending vehicle which were available with the police record, they received a letter vide Ex.B3 and through the said letter they came to know that the driving licnece particulars mentioned in Ex.A5 were incorrect. The 3rd respondent has examined the Sub Inspector of Police who conducted the investigation of the accident as RW2 and according to the evidence of RW2 the accused in the criminal case furnished his driving licence particulars, but he did not enquire whether the said particulars are genuine or incorrect. Ex.B2 is the letter said to have been issued by RTA to the 2nd respondent. Ex.B3 is the letter issued by RTA and as per this letter, the licence No.30677/AG/08 dated 01.01.2008, but they never issued any driving licence with licence No.90/531/AG/08. 7 Therefore, the 3rd respondent contended that it is very clear that licence produced by the 1st respondent is fake one.
11. However, the evidence placed before the Court clearly indicates that the above said fining was recorded only on the basis of oral evidence of RW1 and Exs.B1 to B3. The insurance company which disputed the liability did not chose to examine the concerned persons from the concerned Road Transport Authority (RTA).
12. It is not known whether the said letter was really issued by RTA, because a chance of manipulating the document cannot be ruled out. In addition to this, there is no evidence before the Court to believe that the 2nd respondent has got knowledge about the fake licence produced by the 1st respondent. He might have believed the licence produced by 1st respondent and could have handed over the vehicle to him. Therefore, it cannot be said that the 2nd respondent owner of the vehicle violated the policy conditions. Even otherwise, if the Court believes that the driver of the vehicle hand no valid licence, still the insurance company cannot escape the liability, and at best 8 it will have right to recover the amount from the owner and driver of the vehicle.
13. As could be seen from the impugned award, it is very clear that the learned Chairman, Motor Accident Claims Tribunal simply on the basis of evidence produced by the 3rd respondent came to the conclusion that the 1st respondent has produced a fake driving licence, thereby the insurance company is not liable to pay compensation. thereby, exonerated the 3rd respondent. However, the Court below did not consider the settled proposition of law with regard to payment of compensation in case of fake driving licence of the driver of offending vehicle.
14. In a Judgment between United India Insurance Company Ltd., vs Lehru and Others 1, the Hon'ble Apex Court was pleased to observe that the insurance company cannot avoid its liability towards the 3rd party on the ground that the licence of the driver of a vehicle was a fake licence. In order to avoid liability under Section 149(2)(a)(ii), it must be shown that there is a 'breach' on 1 AIR 2003 SC 1292 9 part of the insured. To hold otherwise would lead to absurd results. The Hon'ble Apex Court was also pleased to observe that when an owner is hiring a driver he will therefore have to check whether the driver has driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. It is rather strange that insurance companies expect owners to make enquiries with RTO's which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a lecence and is driving competently there would be no breach of Section 149(2)(a)(ii). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake the insurance company would continue to remain liable unless then prove that the owner/insured was aware or had 10 noticed that the licence was fake and still permitted that person to drive.
15. In the present case absolutely there is no evidence produced by the 3rd party that respondent No.2 owner of the vehicle has got knowledge that respondent No.1 produced a fake licence and still allowed him to drive the lorry. Therefore, the Court below could not have exonerated the 3rd respondent from payment of compensation.
16. In another Judgment between Shamanna and Another vs Divisional Manager, Oriental Insurance Company Limited and Others 2, the Hon'ble Apex Court while restoring the award passed by the trial Court whereunder the insurance company was also directed to pay compensation, allowed the insurance company to recover the same from the owner of the vehicle after making payment of the enhanced compensation. Similar observations were made by the Hon'ble Apex Court in 2 (2018) 9 scc 650 11 another case between National Insurance Company Limited vs Swaransingh and Others 3.
17. Therefore, the order of the Tribunal in so far as it relates to exoneration of the 3rd respondent is liable to be set aside. The 3rd respondent shall pay the compensation to the appellant/claimants and shall recover the same from respondent Nos.1 and 2 by initiating appropriate proceedings.
18. In view of the judgments relied on by the appellants, it is quite clear that the insurance company cannot escape the liability of payment of compensation. Therefore, the Court below could have directed the insurance company to pay compensation by giving a liberty to recover the same from respondent Nos.1 and 2. Therefore, the appeal deserves to be allowed.
19. In the result, the appeal is allowed in part. The impugned order so far as it relates to exoneration of the 3rd respondent in payment of compensation is set aside. The 3rd respondent is directed to pay the compensation decided 3 2004 3 SCC 297 12 by the trial Court along with interest and costs and shall recover the amount from respondent Nos.1 and 2 by initiating appropriate proceedings.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date:23.01.2024 PSSK