The United India Insurance ... vs Pathakamuri Prameelamma And 6 ...
2023 Latest Caselaw 1156 AP

              THE HON'BLE SRI JUSTICE V.SRINIVAS

                    M.A.C.M.A.No.2604 of 2008


JUDGMENT:

This appeal is directed against the order of the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-V Additional

District Judge, (FTC), Anantapur (hereinafter called as 'the

Tribunal') in O.P.No.149 of 2007 dated 22.04.2008.

2. The appellant is the insurer of the Motor cycle

bearing No.AP 02 M 7600, belonging to the 7 th respondent herein.

The respondent Nos.1 to 6 are wife, daughter, sons and parents of

the Pathakamuri Venkatesulu (hereinafter called as 'the

deceased').

3. According to the claimants, in the petition under

Section 163-A of Motor Vehicle Act (hereinafter referred to as

'M.V.Act') before the Tribunal, on 05.09.2006, the deceased

started to his village Muthuvakuntla in order to go Anantapur in a

motor cycle bearing No.AP 02 M 7600 on the bore well work of 7 th

respondent. The 7th respondent requested to arrange a bore well

to dig in his agricultural land and handedover his motor cycle to

the deceased. While he was reached near Cherlopalli Village on

N.H.7 road at about 07.30 P.M., himself dashed against the bullock

cart. As a result, he sustained grievous injuries and on the same

day he succumbed to injuries while taking treatment. By the time

of accident the deceased was aged about 40 years and earning

Rs.3,000/- per month as bore well agent. Being dependents, the

claimants filed petition under Section 163-A of M.V.Act claiming

compensation of Rs.4,00,000/- against owner and insurer of motor

cycle bearing No.AP 02 M 7600.

4. Counter was filed by the owner of the motor cycle,

denying all the material allegations, stated that he entrusted the

vehicle to the deceased and the said vehicle was insured with the

appellant herein and as such appellant is liable to pay

compensation.

5. Counter was filed by the insurer of the motor

cycle, denying all the material allegations, stated that unless the

claimants proved the manner of accident, the insurer is not liable

to pay compensation; that the compensation claimed is highly

excessive; that the Tribunal has no jurisdiction to entertain this

petition under M.V.Act and as such prays to dismiss the petition.

6. The Tribunal settled the following issues for

enquiry basing on the material:

1.Whether the accident occurred due to rash and negligent act of the driver of the C.T.100 bearing No.AP 02 M 7600 or not?

2.Whether the petitioners are entitled to any compensation, if so to what amount and from which of the respondent? and

3.To what relief?

7. In the course of enquiry, on behalf of the

claimants, PW.1 was examined and Exs.A.1 to A.3 were marked. On

behalf of the insurer of the motor cycle, R.W.1 was examined and

Exs.B.1 to B.3 were marked.

8. On the material, the Tribunal, having come to the

conclusion that as the accident occurred due to the rash and

negligent driving of the deceased and the appellant did not adduce

any evidence with regard to driving license of the deceased and

failed to discharge the burden and policy issued in respect of

motor cycle of 7th respondent is valid policy, held that the

claimants are entitled compensation of Rs.2,98,000/- with interest

at 7.5% per annum from the date of petition till the date of

deposit, payable by the owner and insurer of the said motor cycle

jointly and severally.

9. It is against the said order, the present appeal is

preferred by the insurer of the motor cycle bearing No.AP 02 M

7600.

10. Heard Sri Maheswara Rao Kuncheam, learned

counsel for the appellant and Sri M.Karibasaiah, learned counsel

for the respondent Nos.1 to 6/claimants.

11. Sri Maheswara Rao Kuncheam, learned counsel for

the appellant submits that the Tribunal committed error in

granting the compensation excessively, which is violation of terms

and conditions of the policy and that the Tribunal was not properly

appreciated the evidence of R.W.1 that the deceased was not

having driving license at all and as such the appellant is not liable

to pay compensation. He further submits that if at all this Court is

inclined to grant compensation to the claimants, it may be ordered

pay and recovery from the owner of the vehicle as the deceased is

not having any driving license at the time of accident.

12. Sri M.Karibasaiah, learned counsel for the

claimants submits that the Tribunal rightly awarded the

compensation to the claimants and the appellant failed to

discharge its burden by adducing any evidence to show that the

deceased was not having any driving license. He further submits

that the policy issued in respect of the said motor cycle was in

force and as such the appellant is liable to pay compensation.

13. Now, the following points arise for determination:

1. Whether there is any flaw in awarding the compensation to the claimants against the appellant? and

2. To what relief ?

14. POINT No.1:

After going through the material placed on record before

the Tribunal as well this Court, the main focus made by the

learned counsel for the appellant is since the deceased was not

having any driving license, the Tribunal fell wrong in awarding

compensation to the legal heirs of the deceased from the

insurer/appellant and not conceded that the deceased has driving

license, thereby even if compensation is ordered, it should be

ordered to pay and recover.

15. For which the learned counsel for the respondents

No.1 to 6/claimants submits that though the appellant taken

specific defence of lack of driving license, absolutely no material

is placed to make believe that the deceased was not having any

driving license at the time of accident to drive the motor cycle

bearing No.AP 02 M 7600.

16. In the case of breach of policy conditions due to

disqualification of driver or invalid driving license of the driver has

elaborately considered by the Hon'ble Supreme Court in many

cases. Considering the insurer's contractual liability as well as

statutory liability, in view of the compulsory insurance of the

vehicle, the vehicle in question is insured with the appellant and

policy is in force as on the date of the accident.

17. The Motor Vehicles Act is a social welfare

legislation to extend relief by compensation to victims in the

accident caused by use of motor vehicles. That this paramount

object and the provision of the Act have to be so interpreted as to

effectuate the said object.

18. No doubt, the insurer is entitled to raise a defence

in a claim petition under Section 163-A or Section 166 of M.V. Act

in terms of Section 149(2)(a)(ii) of the Act. But the specific

defence of the insurer that the deceased was not having driving

license at the time of accident as well as breach of policy

condition in disqualification of the driver or in valid driving license

of the driver and it has to be proved to have been committed by

the insured for avoiding liability by the insurer. Mere absence of

filing of driving license at the time of accident or at the relevant

time is not itself defence available to the insurer. The Apex Court

in several pronouncements categorically mentioned that 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.

19. It is also settled law that the insurer would not

avoid its liability towards the insured unless the said breach on the

condition of driving license is so fundamental as are found to have

contributed to the cause of the accident. The concept of

fundamental breach is to be established.

20. It is also settled law that the Tribunal constituted

under Section 165 read with Section 168 is empowered to

adjudicate all claims in respect of the accidents involving death

arising in use of motor vehicle.

21. In the present case, the claim petition is filed

under Section 163-A of M.V.Act. So that the power of the Tribunal

is not restricted to decide the claims inter se between claimant or

claimants on one side and insured and insurer on the other.

22. In the present case, though the defence taken by

the appellant that the deceased was not having any license to

drive the motor cycle at the relevant time and also focused on the

point that had the owner of the vehicle or the claimants failed to

show the driving license of the deceased before the Motor Vehicle

Inspector. Simply because, it is not produced before Motor Vehicle

Inspector, cannot come to conclusion that the driver of the

vehicle/deceased was not having driving license. It is settled law

that in order to avoid the contractual liability by the insurer, it

must be proved there is illegality and breach of terms of policy.

Therefore, in the present case except a bald denial that the

deceased was not having any driving license, there is no other

evidence to disown the responsibility or rather liability of the

insurer.

23. Furthermore, the Tribunal by considering the age,

income as well dependency of the claimants, rightly came to the

conclusion that the claimants are entitled for Rs.2,98,000/-

towards compensation as against the claim of Rs.4,00,000/-, with

interest @ 7.5.% per annum from the date of petition i.e.,

22.03.2007 till realization.

24. In the above circumstances, this Court found no

merits in the appeal to interfere with the well articulated order

passed by the Tribunal. Thus, this point is answered against the

appellant.

25. POINT NO.2:

In view of the findings on point No.1, the appeal is liable to

be dismissed.

26. In the result, the M.A.C.M.A. is dismissed by

confirming the order of the Tribunal, in O.P.No.149 of 2007 dated

22.04.2008. There shall be no order as to costs.

27. Interim orders granted earlier if any, stand

vacated.

28. Miscellaneous petitions pending if any, stand

closed.

____________ V.SRINIVAS, J Date: 28.02.2023 Krs

THE HON'BLE SRI JUSTICE V.SRINIVAS

M.A.C.M.A.No.2604 of 2008

DATE: 28.02.2023

krs