D.Rukmini 2 Ors vs Babjan S.K. Anr
2023 Latest Caselaw 1873 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.1405 of 2012


JUDGEMENT:

The appellants are the petitioners in M.V.O.P.No.535 of 2009

on the file of the Motor Accident Claims Tribunal-cum-I Additional

District Judge, Kurnool and the respondents are the respondents in

the said case.

2. Both the parties in the appeal will be referred to as they are

arrayed in claim application.

3. The claimants filed a Claim Petition under sections 140 and

166 of Motor Vehicles Act, 1988 against the respondents by praying

the Tribunal to award an amount of Rs.5,00,000/- towards

compensation on account of death of Devara Thimmaiah in a Motor

Vehicle Accident occurred on 18.07.2009.

4. The case of the claimants is that on 18.07.2009 at about 9.00

p.m. the deceased Devara Thimmaiah and three others went to a

movie at Mallikarjuna Theatre, Hyderabad, after completion of VGKRJ MACMA 1405 of 2012 Page 2 of 9 Dt: 12.04.2023

cinema, while they were returning from cinema theater and when

they reached near Nizampeta 'X' road, near Pochamma temple, the

driver of lorry bearing No.AP 27 V 8829 came from Miyapur in a

rash and negligent manner, without blowing horn and hit from back

side of Devara Thimmaiah and passed over him. In that accident,

the deceased Devara Thimmaiah and another person by name Kalle

Giddaiah died on the spot and the petitioners claimed an amount of

Rs.5,00,000/- towards compensation for the death of the deceased

in a Motor Vehicle accident.

5. The first respondent remained exparte. The second

respondent filed counter by denying the claim application and

contended that the claimants are not entitled any compensation and

the second respondent is not liable to pay any compensation to the

petitioner.

6. Based on the above pleadings, the Tribunal framed the

following issues:

i. Whether the accident took place as stated in the petition?

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 ii.    Whether         the     petitioners    are   entitled    to

compensation, if so, from which of the respondents? iii. To what relief?

7. On behalf of the petitioners, PW1 and PW2 were examined

and Ex.A1 to Ex.A5 were marked. On behalf of 2nd respondent RW1

and RW2 were examined and Ex.B1 to Ex.B4 and Ex.X1 were

marked.

8. After considering the evidence on record, the Tribunal has

given a finding that the accident was occurred due to rash and

negligent driving of driver of offending vehicle and the Tribunal

granted an amount of Rs.3,19,200/- to the claimants towards

compensation.

9. Aggrieved by the same, the claimants filed the present appeal

by claiming the remaining balance of compensation amount.

10. Now, the point for consideration is:

              Whether     the    Order    of   Tribunal   needs       any
              interference?
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11.     POINT:-

The first petitioner is the wife and the petitioners 2 and 3 are

the parents of the deceased and the case of the petitioners is that

on 18.07.2009 at about 9.00 p.m. the deceased Devara Thimmaiah

and three others went to a movie at Mallikarjuna Theatre,

Hyderabad, after completion of cinema, while they were returning

from cinema theater and when they reached near Nizampeta 'X'

road, near Pochamma temple, the driver of lorry bearing No.AP 27

V 8829 came from Miyapur in a rash and negligent manner, without

blowing horn and hit from back side of Devara Thimmaiah and

passed over him. In that accident, the deceased Devara Thimmaiah

and another person by name Kalle Giddaiah died on the spot. First

respondent is the owner and the second respondent is the insurer of

the crime vehicle.

12. As seen from the material on record one Devara Thimmaiah

died in a road accident. Ex.A1 certified copy of First Information

Report and Ex.A2 certified copy of charge sheet coupled with the

oral evidence produced by the claim petitioners clearly shows that

because of the rash and negligent driving of the driver of the VGKRJ MACMA 1405 of 2012 Page 5 of 9 Dt: 12.04.2023

offending vehicle/ lorry bearing No.AP 27 V 8829, the accident was

occurred. The Tribunal also gave the same finding. Therefore,

there is no need to interfere with the finding given by the Tribunal.

13. As per Ex.X1 driving license of A.Narasimha Rao, driver of the

lorry, he was having only non-transport for Light Motor Vehicle. But

the driver of lorry drove the heavy vehicle, which is also transport

vehicle. To substantiate the contention of the respondents, they

relied on the evidence of staff member of Road Transport Authority

and examined him as RW2. As per the evidence of RW1 and RW2

and Ex.B1 to Ex.B4 and Ex.X1, the driver of the offending vehicle

was not having valid and effective driving licence as on the date of

accident. It is not disputed by both sides that the crime vehicle was

insured with the second respondent/ Insurance company and the

policy is also on force by the date of accident. It was also

represented that the claim granted by the Tribunal is not disputed by

both sides. The learned counsel for Insurance Company

represented that because of the violation in the policy, the

compensation was granted against the first respondent only.

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14. The learned counsel for appellants relied on a decision in

between Kempaiah and others vs. S.S.Murthy and another.1 In

that decision it was held that:

In National Insurance Co. Ltd v. Swaran Singh & Ors, (2004) 3 SCC 297, this Court has, inter alia, observed as follows:

"(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time."

In paragraph 110(viii) of the report in Swaran Singh (supra), it has been also held that the same would be the position in case the driver of the offending vehicle had a learner's licence. The ratio of the law laid down by this Court in Swaran Singh (supra) is in consonance with the object behind the enactment of the Motor Vehicle Act, 1988. Taking into account the same and the decision of this Court in Swaran Singh (supra), we are of the view that in the facts of the present case the insurer-respondent No.2 (Oriental Insurance Company Ltd.) should be directed to satisfy the award as enhanced by us and thereafter would be at liberty to recover the

AIR 2017 Supreme Court 1822 VGKRJ MACMA 1405 of 2012 Page 7 of 9 Dt: 12.04.2023

said amount from the owner of the lorry (transport vehicle). In doing so we have also taken note of the fact that the respondent No.1 (S.S. Murthy), the owner of the vehicle, despite service of notice has chosen not to appear before this Court.

15. As per the evidence on record, the crime vehicle is insured

with second respondent/ Insurance Company and the policy is also

on force and the driver of the offending vehicle is having driving

licence of Light Motor Vehicle non-transport and the said driving

licence is valid and the contention of the second respondent/

Insurance Company is that to drive the lorry, the driver of the lorry

shall have driving licence of Heavy Motor Vehicle. In the present

case, the driver of offending vehicle lorry is not having valid and

effective driving licence. It is not in dispute that the crime vehicle is

insured with Insurance Company and the policy is on force by the

date of accident. Therefore, in view of the above decision reported

in AIR 2017 Supreme Court 1822 the second respondent/

Insurance Company shall pay the compensation of Rs.3,19,200/-,

which was granted by the Tribunal, to the claimants at first instance,

later recover the same from respondent No.1 by filing Execution

Petition without filing independent suit, since first respondent is the

owner of the offending vehicle at the time of accident.

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16. In the result, this appeal is disposed of, by modifying the order

dated 14.03.2012 passed in M.V.O.P.No.535 of 2009 on the file of

the Motor Accident Claims Tribunal-cum-I Additional District Judge,

Kurnool. It is held that the claimants are entitled to a total

compensation of Rs.3,19,200/- with interest @9% p.a., from the

date of petition, till the date of payment. The 2nd respondent/

Insurance Company is directed to pay the claim amount, within one

month from the date of this judgment, to the claimants at first

instance and later recover the same from respondent No.1 by filing

an Execution Petition and without filing any independent suit. On

such deposit, the claimants are entitled to withdraw the same along

with costs and accrued interest thereon. There shall be no order as

to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________________ V.GOPALA KRISHNA RAO, J Dated: 12.04.2023.

Sj
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          HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO




                   M.A.C.M.A.No.1405 of 2012



                          12.04.2023

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