Andhra Pradesh High Court - Amravati

The vs Tata Aig General on 31 August, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No. 739 of 2013

JUDGMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.332 of 2010 on the file of the Chairman,

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

Godavari at Rajahmundry.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim petition.

3. The claim petitioners filed the petition under Section 166 of the

Motor Vehicles Act, 1988 read with Rules 455 and 476 of the A.P.M.V.

Rules, 1989 against the respondents claiming compensation of

Rs.4,00,000/- for the death of Pethseti Bangaraju, who is husband of

1st petitioner and father of petitioner Nos.2 to 9, in a motor vehicle

accident that took place on 31.07.2008.

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4. The brief averments in the petition filed by the petitioners are as

follows:

On 31.07.2008 the deceased as a cleaner and the 1st

respondent as a driver were proceeding from Rajahmundy towards

Visakhapatnam with a load of bricks in a lorry bearing registration

No.AP 05W 4383 and when they reached the outskirts of Addu Road,

Thimmapuram village of S.Rayavaram Mandal on N.H.5 road on

01.08.2008 at about 4.15 hours, the 1st respondent drove the lorry in

a rash and negligent manner and dashed against a stationed lorry

bearing registration No.AEG 1195 from behind, due to which, the

deceased fell on the road and the lorry ran over him resulting in his

instantaneous death. The 1st respondent is driver, the 2nd respondent

is owner and the 3rd respondent is insurer of the offending lorry, hence,

all the respondents are jointly and severally liable to pay

compensation to the petitioners.

5. Respondent Nos.1 and 2 were set ex parte. The 3rd

respondent/Insurance company filed a written statement by denying

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the manner of accident, age, avocation and income of the deceased.

It is pleaded that the offending lorry had no valid permit and fitness

certificate at the time of accident, therefore, the Insurance company

is not liable to pay any compensation.

6. Based on the above pleadings of both the parties, the following

issues were settled for trial by the Tribunal:

1) Whether the accident was occurred due to rash and negligent driving of R.1 driver of lorry bearing registration No.AP 05W 4383?

2) Whether the petitioners are entitled for claim of compensation? If so, to what amount and against which of the respondents?

3) To what relief?

7. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.5 were

marked. On behalf of the 3rd respondent, R.W.1 was examined and

Exs.B.1 to B.7 were marked.

VGKR,J MACMA No.739 of 2013

8. At the culmination of the enquiry, based on the material

available on record, the Tribunal came to the conclusion that the

accident occurred due to rash and negligent driving of the driver of

offending lorry and accordingly, allowed the claim petition in part and

granted an amount of Rs.3,20,000/- with proportionate costs and

interest at 6% p.a. from the date of petition till the date of payment

against respondent No.2 only and dismissed the claim petition against

respondent Nos.1 and 3. Aggrieved against the exoneration of the 3rd

respondent/Insurance company from the liability of payment of the

compensation amount, the appellants/petitioners preferred the

present appeal.

9. Heard learned counsels for both the parties and perused the

record.

10. At the time of hearing, learned counsel for the

appellants/petitioners confined his arguments only to the aspect of

exoneration of the 3rd respondent/Insurance company from payment

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of compensation to the petitioners. Although the appeal has been

filed on the other grounds, the appellants did not press the said

grounds during the course of arguments in the appeal.

11. Therefore, the only legal ground that has to be considered in

this appeal is, whether the exoneration of the Insurance company

from payment of compensation to the petitioners is legally sustainable

or not?.

12. As seen from the impugned order, the Tribunal exonerated the

3rd respondent/Insurance company from its liability of payment of

compensation to the petitioners on the ground that the offending lorry

had no valid permit at the time of accident.

13. It is not in dispute by both sides that the offending lorry was

insured with the 3rd respondent/Insurance company and the policy

was in force. It is not the case of both sides that the driver of the

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offending lorry was not having valid and effective driving licence by

the date of accident.

14. The contention of the 3rd respondent/Insurance company is that

by the date of accident, the offending lorry was not having valid permit

to ply on the road, therefore, the Insurance company is not liable to

pay any compensation to the petitioners.

15. Per contra, learned counsel for the appellants/petitioners would

submit that though there was no valid permit to the offending lorry,

since the offending lorry was insured with the 3rd

respondent/Insurance company and the policy was also in force at

the time of accident, the Insurance company cannot be exonerated

from the liability of payment of compensation to the petitioners. In

support of his contention, he placed reliance on a decision of the

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Hon'ble Supreme Court in Amrit Paul Singh Vs. Tata AIG General

Insurance Company Limited1 wherein it is held thus:

"The exceptions that have been carved out Under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section

66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to

(2018) 7 SCC 558

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prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle."

16. The evidence of R.W.1 goes to show that the offending lorry

had no valid permit to ply on the road by the date of accident and the

permission was obtained on 25.10.2001 which is valid up to

22.10.2012. The evidence of R.W.1 is corroborated by Ex.B.5-

authorization certificate of N.P. goods. In this case, the accident

occurred in the year 2008. Therefore, as seen from the evidence of

R.W.1 and Ex.B.5, it is evident that by the date of accident, there was

no valid permit to the offending lorry.

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17. In view of the above reasons and in the light of the decision of

the Hon'ble Apex Court referred supra, I am of the considered opinion

that the principle of 'pay and recover' has to be applied to the instant