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BVLNC                                                        MACMA 575 of 2019
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         THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI


                        M.A.C.M.A. No.575 OF 2019



JUDGMENT:

This appeal is preferred by 2nd respondent/Insurance

company challenging the award dated 25.02.2019 passed in

M.V.O.P.No.554 of 2015 on the file of Motor Accidents Claims

Tribunal-cum-Prl. District Judge, Kurnool, wherein the Tribunal while

allowing the claim petition, awarded compensation of Rs.12,74,600/-

with interest @ 7% p.a., from the date of petition till the date of

realization, to the petitioners for the death of the deceased Nellipogu

Amadaguntla Dasthagiri @ N.Dasthagiri.

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 (1) (c) 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 06.08.2015 at about 2.00 a.m., near K.C. Canal Culvert at the BVLNC MACMA 575 of 2019 Page 2 of 12 Dt: 21.10.2022

outskirts of Kurnool while the deceased along with a pillion rider was

going on a motor cycle from G.Singavaram village to his native village,

Parla, under the jurisdiction of Kurnool Taluk Police Station.

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

worked as an auto rickshaw driver and earned Rs.9,000/- p.m., and

maintaining his family which consists of the petitioners. On

06.08.2015 early hours the deceased along with Uppari Sunil was

going on a motor cycle from G.Singavaram village to his native Village

Parla and when he reached K.C. Canal culvert at the outskirts of

Kurnool, an auto rickshaw bearing No. AP 21TY 7019 driven by the 1st

respondent in a rash and negligent manner at high speed came behind

the motor cycle driven by the deceased and dashed the same, as a

result the deceased as well as the pillion rider fell on the culvert and

sustained grievous injuries. Both the injured were shifted to

Government General Hospital, Kurnool in 108 Ambulance for

treatment, where both of them died on the same day while undergoing

treatment. The 1st respondent was the owner-cum-driver of the

offending auto rickshaw and the 2nd respondent was the insurer.

5. The 1st respondent before the Tribunal remained exparte.

The appellant, who is the 2nd respondent in the claim petition, filed

written statement resisting while traversing the material averments BVLNC MACMA 575 of 2019 Page 3 of 12 Dt: 21.10.2022

with regard to proof of age, 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 accident was occurred on account of the fault of

the deceased and the 1st respondent had not complied the terms and

conditions of the insurance policy and the driving licence of the 1st

respondent was suspended at the relevant time of the accident by the

Regional Transport Authorities and therefore, the 2nd respondent was

not liable to pay the amount of compensation.

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

Tribunal framed the following issues:

1. Whether the accident occurred due to rash and negligent driving of the owner-cum-driver of auto rickshaw AP 21TY 7019?

2. Whether the deceased Nellipogu Amadaguntla Dasthagiri @ N.Dasthgiri died in a road accident?

3. Whether the petitioners are entitled to compensation, and if so, what amount and against whom?

4. To what relief?

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7. To substantiate their claim, the petitioners examined

P.Ws.1 and 2 and got marked Exs.A1 to A5. On behalf of 2nd

respondent, R.W.1 was examined and Exs.B1 to B6 were marked.

8. The Tribunal, taking into consideration the evidence of

P.Ws.1 and 2 and Exs.A1 to A5 coupled with the evidence of R.W.1 and

Exs.B1 to B6, held that the accident took place on account of the

involvement of the 1st respondent as claimed by the petitioners and

awarded a compensation of Rs.12,74,600/- with interest @ 7% p.a.,

from the date of petition till the date of realization with costs, fixing the

liability on 1st respondent only on the ground that the 1st respondent

did not have valid and effective driving licence at the time of the

accident and thereby there was violation of terms of contract under

Ex.B6 insurance policy.

9. The plea of the insurance company is that in this

particular case the crime vehicle was driven by the owner-cum-driver

and hence there was fundamental breach of terms and conditions of

the insurance policy as the insured himself knowing very well drove

the crime auto without possessing valid driving licence at the time of

the accident and hence 2nd respondent is not liable to indemnify the

insured.

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10. The contention of the appellant-insurance company is that

the Tribunal having noted that the accident was occurred during the

period of suspension of the driving licence of the driver of the crime

auto, who is none other than the owner of the auto, ought not to have

mulcted the liability on the insurer and when once the driving licence

was suspended by the Licensing Authority, during that period the

driver shall not drive the vehicle and it shall be treated that he was not

having licence at all to drive the vehicle during that period and

therefore, the Tribunal ought not to have granted benefit to the

claimants on the principle of pay and recovery as driver and owner are

one and the same person, as per Section 149 (2) of the Motor Vehicles

Act. The other contention of the appellant is that there is no piece of

evidence with regard to the avocation of the deceased and therefore,

fixing his income at Rs.6,000/- p.m., and adding future prospects is

not correct and reasonable for awarding the compensation.

11. The case of the respondents/claimants is that on

06.08.2015 early hours the deceased/ Nellipogu Amadaguntla

Dasthagiri @ N.Dasthagiri along with one Uppari Sunil was going on a

motor cycle from G.Singavaram village to his native Village, Parla and

the deceased was driving the motor cycle and he was going on the

extreme left side of the road and at about 2.00 a.m., when they BVLNC MACMA 575 of 2019 Page 6 of 12 Dt: 21.10.2022

reached a place near K.C. culvert at the outskirts of Kurnool, the crime

auto rickshaw came from behind and dashed the motor cycle and as a

result, the deceased and the pillion rider of the motor cycle fell upon

the culvert and suffered grievous injuries and they were shifted to

Government General Hospital, Kurnool and while undergoing

treatment both of them died on the same day and the cause of the

accident was the rash and negligent driving of the auto by the auto

driver.

12. The appellant-insurance company filed written statement

contending that the driving licence of the auto driver, who is the 1st

respondent in the claim petition, was suspended during the period of

the accident by the Regional Transport Authority and he was the

owner of the crime vehicle and therefore, the insurance company is not

liable for the claim. The Tribunal on issue „whether the accident was

occurred due to the rash and negligence of the owner-cum-driver of

the auto rickshaw‟, upon consideration of the evidence of petitioners‟

side and the documents produced by them, held that the accident was

occurred on account of the rash and negligence of the 1st respondent-

driver and in that accident the deceased and another person died.

13. The Tribunal upon consideration of Ex.B4 policy copy

produced by the insurance company, held that the policy was BVLNC MACMA 575 of 2019 Page 7 of 12 Dt: 21.10.2022

subsisting on the date of the accident i.e., on 06.08.2015. R.W.1, who

was examined by the insurance company deposed that Ex.B2 copy of

the details of issuance of driving licence to the 1st respondent disclosed

that his licence was issued on 17.01.1994, which was renewed from

time to time and it was valid up to 30.06.2020 to drive transport

vehicles and up to 06.07.2021 to drive non-transport vehicles and he

was given a Badge No.9317, but it suffered suspension from

26.02.2015 to 25.08.2015 and further held that the licence was

approved on 01.09.2015 and as of now the status of the licence was

remained as approved as on the date of evidence of R.W.1. Ex.B3 is

the attested copy of the „B‟ Register extract relating to the offending

auto rickshaw. It shows that it was having permit on the date of

accident. R.W.1 in his evidence, in the cross-examination stated that

he does not know the reason for suspension of the driving licence and

suspension of driving licence was revoked as disclosed from Ex.B2 and

observed that during the period of suspension the driver could not

have driven the vehicles on road as deposed by R.W.1. The Tribunal

considering the judgment of the Hon‟ble Apex Court in Ramchandra

Singh Vs. Rajaram and others in Civil Appeal No.8145 of 2018,

dt.14.08.2018 relied on by the learned counsel for the insurance

company held that the circumstances in the case and the facts in the BVLNC MACMA 575 of 2019 Page 8 of 12 Dt: 21.10.2022

case relied on by the insurance company stand on a different footing,

because in that case the driver of the offending vehicle had a fake

driving licence and owner of the vehicle having known the said fact

allowed the driver to drive the vehicle. In the case on hand, the driver,

who was also owner of the vehicle was having valid driving licence to

drive the crime vehicle, but it was ineffective on the date of accident as

it was suspended. Reasons for suspension of the licence are not

forthcoming. Therefore, it is not the case of the insurance company

that the driver of the auto in the crime vehicle was not having

competency to drive the crime vehicle in the case and therefore the

accident was occurred. The insurance company before the Tribunal

also relied on the judgment in the case of The Oriental Insurance

Company Limited Vs. Sabitha Kumari and others, a judgment of

the High Court of Judicature at Patna, dt.18.03.2015. The Tribunal in

its judgment in para No.29 observed as follows:-

"Reliance is also place for the second respondent in "The Oriental Insurance Company Limited .Versus. Sabitha Kumari and others", a judgment of Hon‟ble High Court of Judicature at Patna, dated 18032015. It was a case where the driver had no licence at all, when the alleged accident occurred and when he had produced a fake licence. It was also a case where the owner himself was the driver of the offending vehicle. However, in Para17 of this ruling, the effect of award passed in such circumstances, basing on facts, making the insurer pay first and then recover from the insured, it was observed as under:

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"The Hon'ble Supreme Court in the case of Prem Kumari and others Vs. Prahlad Dev and others, (2008) 3 Supreme Court Cases 193 has held that even in the case that licence was fake, the insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the license was fake and still permitted him to drive. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. Here, it has been proved beyond doubt that the owner, who was himself a driver, had no licence but still he himself was driving the vehicle. The Supreme Court in the above case directed the insurance company to recover the said amount from the owner of the vehicle in the same manner as directed in the case of Nanjappan case, (2004) 13 Supreme Court Cases 244. It appears that the Tribunal in that case held that the insurer was not liable as the driver had a fake license. The Hon'ble Supreme Court relying upon the case of National Insurance Co. Ltd. Vs. Swaran Singh directed the insurance company to recover the same from the owner."

14. Therefore, the Tribunal relying on para No.17 of the said

judgment observed that the insured shall first pay the amount and

then recover from the insured. The Tribunal further held that the

insurance company has obligation to first pay and then recover the

same from the insured and relied upon the case of National Insurance

Co. Ltd. Vs. Swaran Singh and others reported in (2004) 3 SCC 297,

which was approved and followed in Shamanna and another Vs. The

Divisional Manager, The Oriental Insurance Company Limited and

others reported in AIR 2018 SC 3728 = 2018 (9) SCC 650.

15. Therefore, in the case on hand, it is very clear that the

driver of the vehicle has valid driving licence to drive the crime vehicle, BVLNC MACMA 575 of 2019 Page 10 of 12 Dt: 21.10.2022

but it was not in force on the date of accident as it was under

suspension from 26.02.2015 to 25.08.2015 and it is also clear that it

was revoked subsequently as deposed by R.W.1. In the said

circumstances, the Tribunal has applied the principle of pay and

recover by following the judgments of the Hon‟ble Apex Court in

National Insurance Co. Ltd. Vs. Swaran Singh and others and

Shamanna and another Vs. The Divisional Manager, The Oriental

Insurance Company Limited and others. In that view of the matter,

I do not find any ground to interfere with the finding of the Tribunal in

this regard.

16. The Tribunal considered the facts and circumstances of

the case and fixed a sum of Rs.6,000/- as monthly income of the

deceased against the contentions of the claimants that he was earning

Rs.9,000/- p.m., as J.C.B., operator and the Tribunal following the

dictum of the Hon‟ble Apex Court in Sarla Verma and others Vs.

Delhi Transport Corporation and another reported in 2009 ACJ

1298 SC and National Insurance Company Limited Vs. Pranay

Sethi and others reported in 2017 ACJ 2700 calculated the

compensation amount and arrived the sum at Rs.9,32,200/-.

Therefore, I do not find any reasons to interfere with the compensation

amount arrived and fixed by the Tribunal in this case.

 BVLNC                                                     MACMA 575 of 2019
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17. In the light of the above discussion, I do not find any

ground to interfere with the judgment of the Tribunal and therefore,

the appeal is liable to be dismissed.

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

confirming the Award dt.25.02.2019 passed in M.V.O.P.No.554 of 2015

on the file of Motor Accidents Claims Tribunal-cum-Prl. District Court,

Kurnool.

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
21.10.2022
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            HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                    M.A.C.M.A.No.575 OF 2019




                     21st day of October, 2022


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