Heard Learned Counsel For The vs State Of Uttar Pradesh And Others1
2022 Latest Caselaw 2358 AP

     THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                      M.A.C.M.A.No.2509 of 2015

JUDGMENT:

Heard learned counsel for the appellants and learned

counsel for the respondents.

2. The present appeal is filed by the claimants aggrieved by the

award and decree dated 12.08.2015 passed in M.V.O.P.No.415 of

2012 on the file of the Chairman, Motor Accidents Claims

Tribunal-cum-VI Additional District Judge, Kurnool (for short, „the

Tribunal‟).

3. It is the case of the appellants that they filed M.V.O.P.No.415

of 2012, under Section 166 of the Motor Vehicles Act, claiming

compensation of Rs.6,00,000/- for the death of Swamannagari

Ramudu (hereinafter referred to as „the deceased‟), who died in a

motor vehicle accident occurred on 11.03.2010 at about 10:30

A.M. near 420 KM Stone, Nannur Village on NH-18 Road, due to

rash and negligent driving of driver of the auto bearing No.AP-21-

Y-9391 belonging to the 1st respondent herein. The said vehicle

was insured with the 2nd respondent.

4. Learned counsel for the appellants contended that the

Tribunal failed to appreciate the age of the deceased, who

sustained disability due to the accident and not awarded the

compensation as claimed by the appellants and the Tribunal also

failed to appreciate that the appellants are the dependants of the

deceased. The Tribunal also failed to award sufficient means to

dependants/appellants herein. Moreover, the Tribunal considered

the contentions of the 2nd respondent and not accepted the

contentions of the appellants. He further contended that at any

rate the compensation awarded by the Tribunal is against the

settled principles of law and appreciation of issue No.3 in respect

of determination of monthly income of the deceased is far below to

the reality and it must have been more than the amount arrived

and determined by the Tribunal. He further contended that as per

the judgment rendered by the Hon‟ble Apex Court in Leela Gupta

and others Vs. State of Uttar Pradesh and others1, when the

dependants are more than three, the deduction of income towards

the personal expenditure of the deceased should be by 1/4th or

1/5th. Admittedly, there are five dependants upon the deceased as

such the deduction towards personal expenses should not be more

than 1/5th and the other compensation of Rs.30,000/- towards

consortium granted by the Tribunal is very less and therefore, the

award of the Tribunal should be enhanced on these grounds. He

also contended that the award and decree of the Tribunal

exonerating the 2nd respondent from its liability is against law laid

down by the Hon‟ble Apex Court as well as judgments rendered by

this Court. As such the award and decree passed by the Tribunal

shall be set aside.

5. Learned counsel for the 2nd respondent contended that there

is no valid driving licence held by the driver of the vehicle as such

the 2nd respondent herein is not at all liable for any payment and

no award can be passed against the 2nd respondent. As such the

1st respondent is only liable for payment of the compensation

amount as claimed by the appellants herein.

6. I have considered the submission made by the learned

counsel for the appellants as well as learned counsel for the 2nd

(2010) 12 SCC 37

respondent that the award and decree passed by the Tribunal is

not in compliance of the judgment rendered by the Hon‟ble Apex

Court in Shamanna and another Vs. Divisional Manager,

Oriental Insurance Company and others2, wherein it

categorically held at para Nos.6 and 13 as follows:

"6. As per the decision in National Insurance Co. Ltd. Vs. Swaran Singh and others3, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third-party risks. The Tribunal is required to consider "as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver ...does not fulfil the requirements of law or not will have to be determined in each case".

"13....the decision in Swaran Singh's case (supra 3) followed in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut4 and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question...".

7. Therefore, the amount awarded by the Tribunal exonerating

the insurance company from its liability and directing the

appellants to recover the compensation from the owner of the

vehicle is liable to be set aside. In a similar case in Parminder

Singh Vs. New India Assurance Company Limited and others5,

the Hon‟ble Apex Court categorically held that if the driver of the

offending vehicle does not possess a valid driving licence, the

principle of "pay and recover" can be ordered to direct the

(2018) 9 SCC 650

(2004) 3 SCC 297

(2007) 3 SCC 700

(2019) 7 SCC 217

insurance company to pay the victim, and then recover the amount

from the owner of the offending vehicle. In the said judgment, it

further held as follows:

"We deem it just and fair to direct the respondent Insurance Company to pay the enhanced amount of compensation as indicated in para 6 above, to the appellant within a period of 12 weeks from the date of this judgment. The respondent Insurance Company is directed to make out a demand draft in the name of the appellant, which can be used for his care for the rest of his life. The respondent Insurance Company is entitled to recover the amount from the owners and drivers of the two offending trucks."

8. The said principle is initially laid down by the Larger Bench

of the Hon‟ble Apex Court in Swaran Singh's case (supra 3).

Finally, this Court in M.A.C.M.A.No.2928 of 2008 relying upon the

principle laid down by the Hon‟ble Apex Court as stated supra held

that total exoneration to the extent of pay and recovery cannot be

permissible and directing the insurer to deposit the compensation

amount within one month from the date of receipt of the order,

failing which the claimants can execute and recover.

9. Having considered the judgments of the Hon‟ble Apex Court

as well as this Court, it can safely held that the award and decree

exonerating the 2nd respondent from its liability is set aside and

further the amount awarded by the Tribunal in respect of

determination of the income and deduction of 1/3rd towards

personal expenditure is modified as it should be taken as 1/4th

towards personal expenditure in view of the dependants are more

than three as held by the Hon‟ble Apex Court in Leela Gupta‟s

case (supra 1) as well as Swaran Singh's case (supra 3). As per

the said ratio, the monthly income of the deceased shall be

determined as Rs.3375/-. Per annum it comes to Rs.40,500/- by

applying the multiplier „16‟, the compensation would be arrived at

Rs.6,48,000/- and also the amount awarded towards loss of

consortium is very less since the deceased is survived by the minor

children, wife and parents and it should be at Rs.50,000/-.

Therefore, the total award amount is arrived at Rs.6,98,000/-.

Though the appellants/claimants claimed Rs.6,00,000/- towards

compensation, as per the judgment of the Hon‟ble Apex Court in

Ramla Vs. National Insurance Company Limited6, just and

reasonable compensation can be awarded. However, the claimants

shall pay the requisite Court fee in respect of the amount awarded

over and above the compensation claimed.

10. Accordingly, the Appeal is allowed enhancing the

compensation from Rs.5,10,000/- to Rs.6,98,000/- with interest at

the rate of 9% per annum from the date of petition till the date of

realisation. The 2nd respondent is directed to pay compensation

awarded to the appellants by applying the principle of "Pay and

Recover". Thereafter, the 2nd respondent is entitled to recover the

same from the 1st respondent. On such deposit, the appellants are

entitled for apportionment of the awarded amount in terms of the

award of the Tribunal. There shall be no order as to costs.

11. Consequently, Miscellaneous Petitions, if any, pending in

this Appeal shall stand closed.

______________________________________ VENKATESWARLU NIMMAGADDA, J

Date: 05.05.2022 Ivd

2019 (2) SCC 192

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

M.A.C.M.A.No.2509 of 2015

Dated: 05.05.2022

Ivd