The National Insurance Company ... vs K. Suresh And 2 Others
2023 Latest Caselaw 2113 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.3649 of 2014


JUDGEMENT:

The appellant is the third respondent in M.V.O.P.No.391 of

2006 on the file of the Motor Accident Claims Tribunal-cum-V

Additional District Judge (FTC), Anantapur and the respondents are

the petitioner and other 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 claimant filed a Claim Petition under sections 166 of

Motor Vehicles Act against the respondents by praying the Tribunal

to award an amount of Rs.1,00,000/- towards compensation for the

injuries sustained by the petitioner in a Motor Vehicle Accident

occurred on 02.05.2004.

4. The brief averments of the claim petition are as follows:

On 02.05.2004 when the petitioner was travelling in an auto

bearing No.AP 21 V 5170 in order to go to Uravakonda and when

the auto reached near Microwave station on Guntakal-Uravakonda VGKRJ MACMA 3649 of 2014 Page 2 of 10 Dt: 20.04.2023

road at about 1.30 p.m., the driver of auto drove the vehicle in a

rash and negligent manner and lost control over the vehicle and

applied sudden brakes, due to that the vehicle was turned turtle,

resulting which, the petitioner sustained grievous injuries and the

petitioner claimed an amount of Rs.1,00,000/- towards

compensation for the injuries sustained by him.

5. The respondents 1 and 2 remained exparte. The third

respondent filed counter by denying the claim application and

contended that the claimant is not entitled any compensation and

the third 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 occurred due to rash and negligent driving of the driver of the auto bearing No.AP 21 V 5170, auto turned turtle and caused injuries to the petitioner or not?

ii. Whether the petitioner is entitled to compensation, if so, to what amount and from which respondent? iii. To what relief?

 VGKRJ                                             MACMA 3649 of 2014
Page 3 of 10                                       Dt: 20.04.2023

7. On behalf of the petitioner, PW1 was examined and Ex.A1 to

Ex.A4 were marked. On behalf of 3rd respondent RW1 was

examined and Ex.B1 was 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.36,000/- to the claimant towards

compensation.

9. Aggrieved by the same, the third respondent/ Insurance

company filed the present appeal.

10. Now, the point for consideration is:

               Whether   the   Order   of   Tribunal   needs    any
               interference?


11.     POINT:-

The case of the petitioner is that on 02.05.2004 when the

petitioner was travelling in an auto bearing No.AP 21 V 5170 in

order to go to Uravakonda and when the auto reached near VGKRJ MACMA 3649 of 2014 Page 4 of 10 Dt: 20.04.2023

Microwave station on Guntakal-Uravakonda road at about 1.30 p.m.,

the driver of auto drove the vehicle in a rash and negligent manner

and lost control over the vehicle and applied sudden brakes, due to

that the vehicle was turned turtle, resulting which, the petitioner

sustained grievous injuries.

12. In order to prove the case of the petitioner, the petitioner

himself got examined as PW1 and got exhibited Ex.A1 to Ex.A4.

The evidence of PW1 coupled with Ex.A1 certified copy of First

Information Report and Ex.A3 certified copy of charge sheet clearly

goes to show that due to rash and negligent driving of driver of the

auto only the accident was occurred and the claimant, who was

travelling in the said auto, fell down and sustained severe injuries. In

view of the above reasons, because of the rash and negligent

driving of driver of auto only, the accident was occurred. Therefore,

there is no need to interfere with the said finding given by the

learned Tribunal.

13. In order to prove the claim of the petitioner, due to the

accident, he sustained one grievous injury and got conducted

operation to his abdomen at Government General Hospital, VGKRJ MACMA 3649 of 2014 Page 5 of 10 Dt: 20.04.2023

Anantapur, he got exhibited Ex.A2 certified copy of wound certificate,

which reveals that the petitioner was suffering from stomachache

and digestial disorders. Towards compensation for one grievous

injury, the learned Tribunal granted an amount of Rs.15,000/-. The

learned Tribunal also granted an amount of Rs.4,000/- for pain and

suffering, an amount of Rs.1,000/- towards transportation charges,

an amount of Rs.3,000/- towards extra nourishment, an amount of

Rs.4,000/- towards medical expenses, an amount of Rs.2,000/-

towards attendant charges, an amount of Rs.4,000/- towards loss of

earnings and an amount of Rs.3,000/- towards mental agony.

Accordingly, the learned Tribunal granted an amount of Rs.36,000/-

towards total compensation and the learned Tribunal rightly granted

the said amount by giving cogent reasons. Therefore, there is no

need to interfere with the said quantum of compensation awarded

by the Tribunal.

14. As seen from the evidence on record, the respondents 1 and 2

are remained exparte. It is the contention of the learned counsel for

Insurance Company that the driver of crime vehicle has no driving

licence as such third respondent is not liable to pay any VGKRJ MACMA 3649 of 2014 Page 6 of 10 Dt: 20.04.2023

compensation to the petitioner. RW1 K.Chandramouli, Senior

Assistant, National Insurance company Limited, Ananthapur, in his

evidence deposed that the second respondent sold the vehicle to

first respondent but the same was not informed to their office and

there is no documentary proof that the second respondent sold

away the crime vehicle to respondent No.1. As per Ex.B1, the

policy was obtained by the second respondent. The second

respondent did not take any steps to produce either licence or R.C.

of the driver of the offending vehicle from the concerned RTO. It

was held by the Hon'ble Supreme Court of India in National

Insurance Company Limited Vs.Swaran Singh and others1:

The breach of policy condition, e.g,, disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have 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 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

2004(2) ALD 36 VGKRJ MACMA 3649 of 2014 Page 7 of 10 Dt: 20.04.2023

by duly licensed driver or one who was not disqualified to drive at the relevant time.

The learned counsel for claimant relied on a decision of

Hon'ble Supreme Court of India in Francisca Luiza Rocha and

others Vs. K.Valarmathi and others2 in that decision it was held:

"Insofar as the second issue is concerned, what we find from the materials on record is that the driving licence of the driver of the offending truck had lost its validity two months prior to the date of the accident.

In the present case the owner of the vehicle did not contest the proceedings to prove and establish that in spite of best efforts the fact that the driver did not have a valid driving licence was not known to him. What alone stood proved (by the Insurer) was that the driver of the vehicle did not have a valid driving licence on the date of the accident. As the driver had a licence but validity of the same had expired, we are of the view that the conclusion of the High Court that the said fact, by itself, constitutes a fundamental breach of the terms and conditions of the policy of insurance is not correct".

Here in the present case first and second respondents are

remained exparte. There is no evidence on record that second

respondent sold away the vehicle to first respondent. The crime

vehicle is insured with third respondent by the second respondent

and policy was also in force by the date of accident. Therefore, the

2018 ACJ 1430 VGKRJ MACMA 3649 of 2014 Page 8 of 10 Dt: 20.04.2023

second respondent is liable to pay the claim amount. Since the

crime vehicle is insured with third respondent by second respondent

and policy is also on force. In view of the above decisions of Apex

Court, the 3rd respondent/ Insurance company is directed to pay the

total claim of Rs.36,000/- to the claimant at first instance, later

recover the same from respondent No.2 by filing Execution Petition

without filing independent suit, since second respondent is the

owner of the offending vehicle at the time of accident.

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

dated 18.10.2007 passed in M.V.O.P.No.391 of 2006 on the file of

the Motor Accident Claims Tribunal-cum-V Additional District Judge

(FTC), Anantapur. It is held that the claimant is entitled to a total

compensation of Rs.36,000/- with interest @7.5% p.a., from the

date of petition, till the date of payment. The 3rd respondent/

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

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

instance and later recover the same from respondent No.2 by filing

an Execution Petition and without filing any independent suit. On

such deposit, the claimant is entitled to withdraw the same along VGKRJ MACMA 3649 of 2014 Page 9 of 10 Dt: 20.04.2023

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: 20.04.2023.

Sj
 VGKRJ                                    MACMA 3649 of 2014
Page 10 of 10                              Dt: 20.04.2023






          HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO




                   M.A.C.M.A.No.3649 of 2014



                          20.04.2023

sj