The Royal Sundram Alliance ... vs Mohammad Shahera 4 Others
2022 Latest Caselaw 7917 AP

BVLNC                                                         MACMA 8 of 2016
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         THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI


                             M.A.C.M.A. No.8 OF 2016



JUDGMENT:

This appeal is preferred by 3rd respondent/Insurance

company challenging the award dated 29.11.2012 passed in

M.V.O.P.No.448 of 2011 on the file of Motor Accidents Claims

Tribunal-cum-VI Addl. District Judge, Krishna, at Machilipatnam,

wherein the Tribunal while partly allowing the claim petition, awarded

compensation of Rs.4,93,000/- with interest @ 7.5% p.a., from the

date of petition till the date of deposit or realization, to the petitioners

for the death of the deceased Md.Shakhasim @ Saleem.

2. For the sake of convenience, the parties are arrayed as

referred in the trial Court.

3. As seen from the record, originally, the petitioners filed an

application U/s 166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.10,00,000/- with interest and costs on

account of the death of the deceased in a motor accident occurred on

21.05.2011 at 7.30 a.m., near Vivekananda Park, Brahmapuram, BVLNC MACMA 8 of 2016 Page 2 of 13 Dt: 18.10.2022

Pedana Town while the deceased was proceeding from Guduru towards

Pedana on his cycle, under the jurisdiction of Pedana Police Station.

4. The facts of the case, in brief, are that the deceased was

working as Supervisor under a contractor Borra Seshagiri Rao at

Machilipatnam and Pedana and used to earn Rs.10,000/- p.m., On

21.05.2011 the deceased started on his cycle from Guduru to Pedana

village on the contract works and when he reached Vivekananda Park

at Brahmapuram, Pedana town, at 7.30 hrs., the 1st respondent, who

was the driver of crime Auto bearing No.AP 16TA 5804 while

proceeding from Kappaladoddi towards Pedana, drove the crime auto

in a rash and negligent manner in high speed, lost control over the

auto and dashed the cycle of the deceased from its back, due to which

the deceased fell down and sustained injuries on the head, other parts

of the body and died on the spot. The deceased was shifted to

Government Hospital, Machilipatnam, where post mortem was

conducted and issued a report to that effect. Pedana Police registered

a case in Cr.No.75 of 2011 against the 1st respondent under Section

304-A IPC.

5. Before the Tribunal, the appellant, who is the 3rd

respondent in the claim petition, filed counter resisting while

traversing the material averments with regard to proof of age, BVLNC MACMA 8 of 2016 Page 3 of 13 Dt: 18.10.2022

avocation, monthly earnings of the deceased, manner of accident, rash

and negligence on the part of the driver of the crime auto and liability

to pay compensation and contended that the 1st respondent did not

possess valid driving licence at the time of the accident to drive the

crime auto and it amounts to violation of the terms and conditions of

the insurance policy on the part of the 2nd respondent/insured, as

such 3rd respondent is not liable to pay any compensation to the

petitioners.

6. On the strength of the pleadings of both parties, the

Tribunal framed the following issues:

1. Whether the accident has taken place on account of rash and negligent driving of 1st respondent being the driver of crime vehicle i.e., Auto bearing No.AP 16TA 5804?

2. Whether the claim petitioners are entitled to any compensation, if so, from whom and to what extent?

3. To what relief?

7. To substantiate their claim, the petitioners examined

P.Ws.1 and 2 and got marked Exs.A1 to A8. On behalf of 3rd

respondent, R.Ws.1 and 2 were examined and Exs.B1 to B3 were BVLNC MACMA 8 of 2016 Page 4 of 13 Dt: 18.10.2022

marked. The respondents 1 and 2 before the trial Court were set

exparte.

8. The Tribunal, taking into consideration the evidence of

P.Ws.1 and 2 and Exs.A1 to A8 coupled with the evidence of R.Ws.1

and 2 and Exs.B1 and B2, held that the accident took place due to the

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

16TA 5804 and awarded a compensation of Rs.4,93,000/- with

interest @ 7.5% p.a., from the date of petition till the date of deposit or

realization with costs, fixing the liability on all the respondents 1 to 3,

however the 3rd respondent insurance company was given liberty to

reimburse the amount of compensation from the 2nd respondent owner

of the crime auto as there was violation of terms and conditions of

insurance policy.

9. The plea of the insurance company is that there was

violation of the terms and conditions of the insurance policy by the 2nd

respondent/insured as he allowed the 1st respondent to drive the crime

auto without possessing valid driving licence at the time of the

accident, and hence 3rd respondent is not liable to indemnify the

insured.

 BVLNC                                                  MACMA 8 of 2016
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10. The contention of the appellant/insurance company is

that the accident was occurred due to the negligence of the deceased

and therefore, the insurance company is not liable to pay any

compensation and that insured vehicle is a passenger carrying

commercial vehicle, and thus the driver must have transport

endorsement to drive such vehicle, but the 4th respondent, who was

the driver of offending vehicle was having licence only to drive motor

cycle with gear and light motor vehicle and therefore, conditions of the

policy were violated by the insured and hence, the insurance company

is not liable to indemnify the insured for the compensation amount

awarded by the Tribunal.

11. When coming to the first contention of the insurance

company that the negligence of the deceased caused the accident and

there was no rash or negligence on the part of the auto driver of the

crime vehicle in the accident occurred on 21.05.2011, the claimants in

support of their case have examined the 1st respondent/claimant, who

is the wife of the deceased as P.W.1. The claimants to corroborate the

evidence of P.W.1, have examined one Mr.P.Naga Mohan Rao, a third

party eye witness to the accident. P.W.1 in her chief-examination

reiterated the case of the claimants as pleaded in the claim petition

about the manner in which the accident was occurred. In the cross-

 BVLNC                                                   MACMA 8 of 2016
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examination she admitted that she was not an eye witness to the

accident. But, P.W.1 to corroborate her version about the accident,

filed Ex.A1 copy of F.I.R., Ex.A3 copy of Inquest report, Ex.A4 copy of

Motor Vehicles Inspector report and Ex.A6 copy of police report (charge

sheet). P.W.2 in his chief-examination affidavit stated that he knows

the deceased in the case and 1 ½ year ago at about 7.30 a.m., the

accident was occurred near to his cycle shop and at that time the

deceased was coming on a cycle and the crime auto was coming in

opposite direction and dashed the cycle from back side and the auto

was driven negligently by the driver at the time of the accident and as

a result the auto dashed the cycle of the deceased and then the

deceased fell down from the cycle and there was head injury and he

died on the spot and the accident was caused by the 4th respondent-

auto driver. The evidence deposed by P.W.2 before the Tribunal

supports the version of the police as found in Ex.A6 copy of police

report (charge sheet). Against the said evidence produced by the

claimants, the appellant-insurance company has examined its Legal

Officer Mr.S.Vinod Kumar as R.W.1. In his chief-examination affidavit

he did not state anything as to how the accident was occurred. He did

not state anything about the manner of accident supporting the case of

the insurance company as pleaded in their counter. His evidence was BVLNC MACMA 8 of 2016 Page 7 of 13 Dt: 18.10.2022

about the case of the insurance company that the driver of the auto

was not having valid licence to drive the auto rickshaw as on the date

of accident and the auto driver was having only licence to drive Light

Motor Vehicles and as per the policy the driver shall hold an effective

and valid driving licence to drive the category of the vehicle insured

and therefore, the insured violated the terms and conditions of the

policy within the meaning of sub-section (3) of Section 66 of the Motor

Vehicles Act and therefore, insurance company is not liable to

indemnify the insured.

12. The appellant-insurance company has examined

Mr.A.Narendra, who was working as Senior Assistant in R.T.A., Office

at Machilipatnam. He also did not depose anything about the manner

in which the accident was occurred. Therefore, the appellant-

insurance company did not adduce any evidence to disprove the

testimony of P.W.2, which shows that the accident was occurred due

to rash and negligent driving of the auto by the driver, who is one of

the respondents in the claim petition. It is pertinent to note down that

the appellant-insurance company did not take any steps to examine

the driver of the auto in support of their case that accident was

occurred due to the negligence of the deceased. In that view of the

matter, I do not find any ground to interfere with the finding of the BVLNC MACMA 8 of 2016 Page 8 of 13 Dt: 18.10.2022

Tribunal that the accident was occurred due to rash and negligent

driving of the auto driver of the crime vehicle involved in the case.

13. When coming to the second contention of the insurance

company about violation of the policy conditions, as already stated

above, R.W.2 produced Ex.B2 policy and copy of driving licence of the

auto driver, which was marked as Ex.B3 and deposed that as per

Ex.B2 the auto driver was holding a licence to drive a non-transport

light motor vehicle and therefore, it is not valid to drive the auto

rickshaw as on the date of the accident and as per Ex.B2 policy any

person driving the insured vehicle shall hold an effective and valid

driving licence to drive the category of the vehicle insured and

therefore, the owner of the auto i.e., insured violated the terms and

conditions of the policy by entrusting the vehicle to a person who is

not holding valid licence to drive the auto and as such the insurance

company is not liable to indemnify the owner of the auto i.e., insured

in the case. In the cross-examination of the claimants he admitted

that Ex.B2 policy was in force at the time of the accident. R.W.2, who

was working as Senior Assistant in R.T.A. Office, Machilipatnam

deposed that as per their records the driver was holding licence to

drive a light motor vehicle non-transport vehicle and he was not

authorised to drive an auto.

 BVLNC                                                    MACMA 8 of 2016
Page 9 of 13                                             Dt: 18.10.2022



14.            The     Tribunal   considering   the   above    facts   and

circumstances, followed the judgment of the Hon'ble Apex Court in

National Insurance Com. Ltd. vs. Swaran Singh1, wherein the

Hon'ble Apex Court held that even in case of violation of the terms and

conditions of the insurance policy regarding non-possession of a valid

driving licence, by virtue of the fact that the crime vehicle was under

the coverage of the valid insurance policy at the time of the accident,

the concerned insurance company has to first pay the awarded

compensation to the 3rd party victims and then, it can seek

reimbursement from the owner of the crime vehicle. The Tribunal

accordingly ordered that the appellant-insurance company shall first

pay the awarded compensation to the claimants and then it can seek

reimbursement from the owner by initiating the appropriate legal

proceedings and the Tribunal awarded a sum of Rs.4,93,000/- with

simple interest at 7.5% p.a., from the date of petition till the date of

deposit under various heads as discussed in the Award.

15. Admittedly, in the case on hand, even as per the evidence

of R.W.1 the policy was a valid policy, and it was in force as on the

AIR 2004 SC 1531 BVLNC MACMA 8 of 2016 Page 10 of 13 Dt: 18.10.2022

date of accident. The driver of the auto in the case was holding a valid

licence to drive light motor vehicle non-transport as on the date of

accident. The crime vehicle i.e., the auto involved in the case was a

light motor vehicle which comes under the category of transport. The

Hon'ble Apex Court in Jagdish Kumar Sood vs. United India

Insurance Co. Ltd. and others2 held that vehicle involved in an

accident was light goods vehicle and the driver possessing light motor

vehicle licence cannot be said to be not authorised to drive transport

vehicles and the order of the Tribunal observing insured to pay

compensation is erroneous and set aside the same. The Hon'ble Apex

Court in Shamanna and another vs. Divisional Manager Oriental

Insurance Company Ltd. and others3 held that when driver was not

possessing valid driving licence and drove the vehicle negligently, due

to which 3rd party suffered, insurer is liable to pay compensation and

recover the same from the owner as laid down in Swaran Singh case.

The Hon'ble Apex Court in Santalal Appellant Vs. Rajesh and others4

observed and held as follows:-

"This Court has considered the question whether the holder of licence for light motor vehicle can drive tractor attached to the

AIR 2018 SC 2906

AIR 2018 SC 3736

2017 AIR (Civil) 734 BVLNC MACMA 8 of 2016 Page 11 of 13 Dt: 18.10.2022

trolley carrying goods and also whether separate endorsement is required authorising him to drive such a transport vehicle? We have answered the question that driver having licence to drive light motor vehicle can drive such a transport veicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.

Accordingly, in view of the answer given to reference by the three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd., (Civil Appeal No.5826 of 2011), these appeals have to be allowed and are hereby allowed. The right given to the insurer to recover amount from owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer."

16. Further, the Hon'ble Apex Court in Parminder Singh vs.

New India Assurance Co. Ltd. and others5 held that the insurance

company shall pay the compensation and can recover the same from

the owner when the driver of the offending vehicle was not holding a

valid licence.

17. In the light of the above facts of the case, and the

principles of law, I do not find any reason to interfere with the finding

of the Tribunal that the insurance company shall first pay the awarded

AIR 2019 SC 3128 BVLNC MACMA 8 of 2016 Page 12 of 13 Dt: 18.10.2022

compensation to the petitioners/claimants and then it can seek

reimbursement of the same from the owner by initiating the

appropriate legal proceedings.

18. In view of the above, discussion, I do not find any

substance in the appeal and no reason to interfere with the impugned

order, accordingly the appeal being devoid of merits, is liable to be

dismissed.

19. In the result, the Civil Miscellaneous Appeal is dismissed

confirming the Award dt.29.11.2012 passed in M.V.O.P.No.448 of 2011

on the file of Motor Accidents Claims Tribunal-cum-VI Addl. District

Court (F.T.C.), Krishna, Machilipatnam.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

                                              _____________________________
                                               B.V.L.N.CHAKRAVARTHI, J
18.10.2022
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 BVLNC                                            MACMA 8 of 2016
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            HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                     M.A.C.M.A.No.8 OF 2016




                     18th day of October, 2022


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