The vs Swaran Singh And Others
2023 Latest Caselaw 3450 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 2819 of 2015

JUDGEMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.291 of 2012 on the file of the Chairman,

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

Machilipatnam.

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 claiming compensation of

Rs.3,00,000/- for the death of Thota Mallesh, who is husband of 1st

petitioner and father of petitioner Nos.2 & 3, in a motor vehicle

accident that took place on 17.02.2012.

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

as follows:

On 17.02.2012 the deceased went to the house of one

Potharaju for undertaking construction of his house. After

completing the mason work at about 7.00 p.m. he was waiting for a

bus at Veerlankamma temple, Chorampudi village. Meanwhile, an

auto bearing No.AP 16TA 6562 being driven by its driver in a rash

and negligent manner at high speed came and dashed against the

deceased, as a result, the deceased sustained grievous injuries and

on 19.02.2012 he succumbed to injuries while undergoing treatment

in the Government Hospital, Machilipatnam. Initially, a case in crime

No.16 of 2012 was registered for the offence under Section 337 of

IPC. Later, on receipt of death intimation of the deceased on

19.02.2012, the Section of law was altered to 304-A of IPC. After

thorough investigation into the case, the police laid charge sheet

against the driver of the auto. The 1st respondent is driver, the 2nd

respondent is owner and the 3rd respondent is insurer of the crime

VGKR,J MACMA No.2819 of 2015

auto. Hence, all the respondents are jointly and severally liable to

pay compensation to the petitioners.

5. The 1st respondent was set ex parte.

6. Respondent Nos.2 and 3 filed counters separately by denying

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

It is pleaded by the 2nd respondent that the accident occurred only

due to negligence of the deceased himself. It is pleaded by the 3 rd

respondent/Insurance company that the driver of the auto was not

having valid and effective driving licence at the time of accident and

the deceased was travelling in the auto as an unauthorized

passenger and thereby, the 2nd respondent violated the conditions of

policy, as such, the insurance company is not liable to pay any

compensation.

7. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

VGKR,J MACMA No.2819 of 2015

1) Whether the Thota Mallesh died in a motor vehicle accident occurred on 17.02.2012 due to rash and negligent driving of the driver of the auto bearing No.AP 16TA 6562?

2) Whether the petitioners are entitled to compensation? If so, what amount? And from which of the respondents?

3) To what relief?

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

the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.6

and Ex.X.1 were marked. On behalf of respondent Nos.2 and 3,

R.Ws.1 and 2 were examined and Exs.B.1 to B.4 were marked.

9. 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 auto and accordingly, allowed the claim petition in part

and awarded an amount of Rs.2,00,000/- with costs and interest at

7.5% p.a. from the date of petition till the date of deposit against

respondent Nos.1 and 2 only and dismissed the claim petition

against the 3rd respondent/Insurance company. Aggrieved against

VGKR,J MACMA No.2819 of 2015

the exoneration of the Insurance company from the liability of

payment of the compensation amount, the appellants/petitioners

preferred the present appeal.

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

record.

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

appellants/petitioners has confined his arguments only to the aspect

of fixation of liability for payment of compensation.

12. Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court?

13. POINT: The Tribunal, on considering the material available

on record, held that the accident occurred due to rash and negligent

driving of the driver of the offending auto and allowed the petition in

part awarding compensation of Rs.2,00,000/- to the petitioners

VGKR,J MACMA No.2819 of 2015

against respondent Nos.1 and 2 only, while dismissing the petition

against the 3rd respondent/Insurance company.

14. Since the learned counsel for the appellants/petitioners has

confined his arguments only to the aspect of fixation of liability for

payment of compensation, there is no need to interfere with the

findings recorded by the Tribunal on the other aspects of proving of

accident and awarding of compensation.

15. It is not in dispute that the 2nd respondent/owner insured the

offending auto with the 3rd respondent/Insurance company under

Ex.B.1-policy and the policy was in force as on the date of accident.

16. Though it is the case of the appellants/petitioners that the 1 st

respondent/driver was having valid driving licence at the time of

accident, they did not choose to file a copy of driving licence of the

1st respondent and examine either the 1st respondent/driver or 2nd

respondent/owner to establish their case.

VGKR,J MACMA No.2819 of 2015

17. On the other hand, in order to prove that the driver of the

offending vehicle was not having valid and effective driving licence

at the time of accident, the respondents got examined the Senior

Assistant in the office of R.T.A., Machilipatnam, as R.W.1. In his

evidence, R.W.1 deposed that after thorough verification of the

records in his office, no licence was found in the name of the 1 st

respondent/driver. Nothing contra was elicited from his cross-

examination by the petitioners. A perusal of Ex.A.5/Ex.B.2-M.V.I.

report reveals that the driver could not make his licence available

when the M.V.I. had inspected the offending vehicle. Ex.B.4-

certified copy of charge sheet also discloses that the driver was not

having licence at the time of accident. The evidence of R.W.1

coupled with Exs.A.5/Ex.B.2 and Ex.B.4 categorically proves that

the 1st respondent/driver was not having driving licence at the time

of accident and thereby, the 2nd respondent violated the terms and

conditions of Ex.B.1 policy.

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18. At this stage, learned counsel for the appellants/petitioners

contended that the 3rd respondent/Insurance company cannot

escape from liability of payment of compensation and it has to pay

third party risks. In support of this contention, he placed reliance on

the decision of the Hon'ble Supreme Court in National Insurance

Co. Ltd. Vs. Swaran Singh and others1.

19. The principle laid down in Swaran Singh case referred supra

is that even in case of absence, fake or invalid licence or

disqualification of the driver for driving, the Insurance company is

liable to satisfy the award in favour of 3rd party at the first instance

and later recover the award amount from the owner of offending

vehicle, even when the Insurance company could able to establish

breach of terms of policy on the part of the owner of the offending

vehicle.

2004 (2) ALD (SC) 36

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20. For the foregoing discussion, the 3rd respondent/Insurance

Company is liable to pay the compensation to the petitioners in the

first instance and later recover the same from the 2nd

respondent/owner of the offending auto, by filing an execution

petition and without filing any independent suit.

21. Accordingly, the 3rd respondent/Insurance Company is

directed to deposit the compensation amount of Rs.2,00,000/- with

costs and interest as ordered by the Tribunal, before the Tribunal in

the first instance within two months from the date of this judgment

and later recover the same from the 2nd respondent/owner of the

offending auto by filing an execution petition and without filing any

independent suit. The order passed by the Tribunal with regard to

the liability is modified to the extent indicated above. The order of

the Tribunal in all other respects shall remain intact.

22. The appeal is accordingly disposed of. No order as to costs.

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As a sequel, miscellaneous petitions, if any, pending in the

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 14 July, 2023 cbs

VGKR,J MACMA No.2819 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2819 of 2015

14th July, 2023 cbs