The vs Swaran Singh And
2023 Latest Caselaw 3490 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 2687 of 2015

JUDGEMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioner and respondent Nos.1 and 3 in

M.V.O.P.No.773 of 2011 on the file of the Chairman, Motor Accident

Claims Tribunal-cum-VI Additional District Judge, Visakhapatnam.

The appellant filed the appeal questioning the legal validity of the

order of the Tribunal.

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 petitioner filed the petition under Section 166 of the

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

1989 claiming compensation of Rs.2,00,000/- for the injuries

sustained by him in a motor vehicle accident that took place on

29.10.2010.

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

follows:

On 29.10.2010 the petitioner was proceeding on his motor

cycle bearing registration No.AP 31AU 9346 from Tallapalem and

after crossing Sunkarametta in Sabbavaram road when he reached

near the bridge, an oil tanker lorry bearing registration No.AP 35T

3709 being driven by its driver in a rash and negligent manner came

in opposite direction and dashed the motor cycle of the petitioner

resulting in grievous injuries to the petitioner. The 3rd respondent is

driver, the 1st respondent is owner and the 2nd respondent is insurer

of the offending lorry, hence, all the respondents are jointly and

severally liable to pay compensation to the petitioner.

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

respondent/Insurance company filed a counter by denying the

manner of accident. It is pleaded by the 2nd respondent/Insurance

company that the 3rd respondent/driver did not possess valid and

effective driving licence to drive the lorry at the time of accident and

thereby, the 1st respondent violated the conditions of policy, as such,

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the Insurance company is not liable to pay compensation to the

petitioner.

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

following issues were settled for trial by the Tribunal:

1) Whether the petitioner sustained injuries in a motor accident that occurred on 29.10.2010 due to rash and negligent driving of Oil Tanker bearing No.AP 35T 3709 by its driver?

2) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents?

3) To what relief?

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

the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.12 were

marked. On behalf of the 2nd respondent/Insurance company,

R.Ws.1 and 2 were examined and Exs.B.1 and B.2 and Exs.X.1 and

X.2 were marked.

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

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

accident occurred on account of rash and negligent driving of the

VGKR,J MACMA No.2687 of 2015

driver of the offending lorry, as a result, the petitioner sustained

grievous injuries and accordingly, allowed the petition granting an

amount of Rs.3,45,000/- with costs and interest at 7.5% p.a. from

the date of petition till the date of deposit against all the respondents.

Aggrieved against the said order, the appellant/Insurance company

preferred the present appeal.

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

record.

10. Learned counsel for the appellant/Insurance company mainly

contended that the driver of the offending lorry was not having

hazardous endorsement on his driving licence to drive the offending

lorry at the time of accident.

11. Now, the point for determination is:

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

12. POINT: In order to establish that the accident occurred due

to rash and negligent driving of the driver of the offending lorry, the

VGKR,J MACMA No.2687 of 2015

petitioner got examined himself as P.W.1. P.W.1 in his evidence

reiterated the contents in the claim petition. There is nothing in the

cross-examination of P.W.1 to discredit his evidence. The petitioner

also relied on Ex.A.1-attested copy of first information report,

Ex.A.3-attested copy of M.V.I. report and Ex.A.4-attested copy of

charge sheet. Ex.A.1 reveals that a crime was registered against the

driver of the offending lorry. Ex.A.3 goes to show that the accident

occurred not due to any mechanical defects in the offending lorry.

Ex.A.4 discloses that after completion of investigation into the

accident, the police laid a charge sheet against the driver of the

offending lorry. The evidence of P.W.1 and Exs.A.1, A.3 and A.4

clearly prove that the accident occurred because of rash and

negligent driving of the offending lorry and in the accident, the

petitioner sustained injuries. The Tribunal, on appreciating the

material evidence on record, also came to the same conclusion.

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

the Tribunal.

VGKR,J MACMA No.2687 of 2015

13. It is the case of the petitioner that due to the accident, he

suffered swelling and deformity of right leg, swelling and tenderness

of right knee, fracture to right patella and other injuries all over the

body, an operation was conducted to his right leg and plates were

fixed by the doctors and he was in the hospital for 14 days, he is

unable to stand due to fracture injuries and he sustained permanent

disability to the extent of 50%, he used to earn Rs.6,000/- per month

as a weaver in Chittivalasa Jute Mill. In order to establish the same,

the petitioner examined the doctors, who treated him, as P.Ws.2

and 3 and got marked Exs.A.2 and A.5 to A.12. In his evidence

P.W.3 deposed that the petitioner sustained two fractures and

permanent disability to the extent of 50% and he issued Ex.A.9-

disability certificate; the petitioner is having loss of flexion beyond 90

degrees to the lower limb; the petitioner may have to undergo knee

replacement which may cost Rs.2,50,000/-; he issued Ex.A.1-

estimation for removal of implants and Ex.A.12-x-rays; and he

denied the suggestions that he cannot issue disability certificate and

assessment for removal of implants.

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14. By giving cogent reasons, the Tribunal arrived the monthly

income of the deceased at Rs.3,500/- i.e., Rs.42,000/- p.a.,

permanent disability of the petitioner at 50% and by applying the

appropriate multiplier '15' to the age group of the petitioner who was

aged about 39 years at the time of accident, arrived the future loss

of income of the petitioner at Rs.3,15,000/- (Rs.42,000/- x 50%

disability x multiplier '15'). As the petitioner sustained two fractures,

the Tribunal further awarded a sum of Rs.20,000/- for two fractures

and Rs.10,000/- towards nutrition and transportation charges. In all,

the Tribunal awarded an amount of Rs.3,45,000/-. Though the

petitioner claimed Rs.2,00,000/-, in the light of the principle laid

down by the Hon'ble Apex Court in various judgments, the Tribunal

awarded Rs.3,45,000/- and directed the respondents to pay the

requisite court fee in respect of the amount awarded over and above

the compensation claimed. This Court feels that there is no illegality

or irregularity in awarding the said quantum of compensation and it

warrants no interference.

VGKR,J MACMA No.2687 of 2015

15. Coming to the fastening of liability, admittedly, the 1st

respondent is owner and the 2nd respondent is insurer of the

offending lorry under Ex.B.1 policy and the policy was in force as on

the date of the accident and the driver of the offending lorry

possessed heavy transport and non-transport driving licence. It is

the contention of the learned counsel for the appellant/Insurance

company that the driver of the offending lorry had no hazardous

driving licence at the time of accident and thereby, the 1st

respondent/owner violated the conditions of policy and hence, the

Insurance company is not liable to pay any compensation. R.W.1

deposed in his evidence that the offending lorry (oil tanker) is a

hazardous one and therefore, the driver of the offending vehicle

should possess hazardous driving licence, but in the present case,

he was not holding hazardous driving licence at the time of accident.

R.W.2, Senior Assistant in RTA office, Vizianagaram, also deposed

that to drive the offending lorry, hazardous endorsement on the

driving licence is required, but by the date of accident, the driver

was not having such endorsement on his driving licence and as per

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Ex.X.2-driving licence of the 3rd respondent/driver, the driver did not

obtain such endorsement. As seen from the evidence of R.Ws.1 and

2 as well as Ex.X.2, it is clear that the 3rd respondent/driver of the

offending lorry was not having hazardous endorsement on his

driving licence and by allowing the 3rd respondent to drive the

offending lorry, the 1st respondent/owner violated the terms and

conditions of the policy.

16. The principle laid down in the decision of the Hon'ble Supreme

Court in National Insurance Co. Ltd. Vs. Swaran Singh and

others1 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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17. For the foregoing discussion, the 2nd respondent/Insurance

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

first instance and later recover the same from the 1 st

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

petition and without filing any independent suit.

18. Accordingly, the 2nd respondent/Insurance Company is

directed to deposit the compensation amount of Rs.3,45,000/- 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 1st respondent/owner of the

offending lorry 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.

19. 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 17 July, 2023 cbs

VGKR,J MACMA No.2687 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2687 of 2015

17th July, 2023 cbs