The vs Swaran Singh And Others
2023 Latest Caselaw 3524 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 2280 of 2012

JUDGEMENT:

The appellant is claim petitioner and the respondents are

respondents in M.V.O.P.No.94 of 2001 on the file of the Chairman,

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

Tirupati.

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 (1) (a)

of the Motor Vehicles Act, 1988 claiming compensation of

Rs.3,35,000/- for the injuries sustained by him in a motor vehicle

accident that took place on 17.09.2000.

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

follows:

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On 17.09.2000 at about 10.15 p.m. the petitioner was

proceeding on his motor cycle bearing registration No.AP 03 6652

towards Srikalahasti and when he reached near Malligunta cross road

of Thottambedu Mandal, a lorry bearing registration No.AAD 6581

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

opposite direction and dashed against the motor cycle of the

petitioner, as a result, the petitioner fell down and sustained grievous

injuries. On a complaint, the S.H.O., Thottambedu P.S. registered a

case in Crime No.65 of 2000 for the offences under Sections 337 and

279 of IPC and after completion of investigation, a charge sheet was

filed against the driver of the offending lorry. The 1st respondent is

owner and the 2nd respondent is insurer of the offending lorry. Hence,

both the respondents are jointly and severally liable to pay

compensation to the petitioner.

5. The 1st respondent was set ex parte.

VGKR,J MACMA No.2280 of 2012

6. The 2nd respondent/Insurance company filed a counter by

denying the manner of accident, age, income, injuries and treatment.

It is pleaded that the compensation claimed is excessive.

7. 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 due to rash and negligent driving of the driver of first respondent?

2) Whether the petitioner is entitled for compensation as prayed for in the petition?

3) To what relief?

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

the petitioner, P.Ws.1 to 4 were examined and Exs.A.1 to A.12 were

marked. On behalf of the 2nd respondent, R.W.1 was examined and

Exs.B.1 and B.2 were marked.

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

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

VGKR,J MACMA No.2280 of 2012

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

offending lorry and accordingly, allowed the claim petition in part

against respondent No.1 only and dismissed the claim petition against

the 2nd respondent/Insurance company. Aggrieved against the

exoneration of the Insurance company from the liability of payment of

the compensation amount, the appellant/petitioner 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

appellant/petitioner 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?

VGKR,J MACMA No.2280 of 2012

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 lorry and allowed the petition in

part awarding compensation of Rs.2,36,000/- with costs and interest

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

respondent No.1 only, while dismissing the petition against the 2nd

respondent/Insurance company.

14. Since the learned counsel for the appellant/petitioner 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 1st respondent/owner insured the

offending lorry with the 2nd respondent/Insurance company under

Ex.B.2-policy and the policy was in force as on the date of accident.

VGKR,J MACMA No.2280 of 2012

16. It is the contention of the learned counsel for the 2 nd

respondent/Insurance company that the driver of offending lorry did

not possess valid driving licence at the time of accident and it

amounts to violation of conditions of Ex.B.2-policy. In order to prove

its case, the Insurance company got examined the Senior Assistant

in Regional Transport Office, Kadapa, as R.W.1. R.W.1 in his

evidence deposed that their office never issued driving licence to the

driver of the offending lorry. Nothing contra was elicited from his

cross-examination by the petitioner. Further, the appellant/petitioner

did not choose to file a copy of driving licence of the driver of the

offending lorry. The evidence of R.W.1 proves that the driver of the

offending lorry was not having driving licence at the time of accident

and thereby, the 1st respondent/owner violated the terms and

conditions of Ex.B.2-policy.

17. At this stage, learned counsel for the appellant/petitioner

contended that the 2nd respondent/Insurance company cannot

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

VGKR,J MACMA No.2280 of 2012

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.

18. 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.

19. 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 1st respondent/owner of

the offending lorry, by filing an execution petition and without filing

any independent suit.

2004 (2) ALD (SC) 36

VGKR,J MACMA No.2280 of 2012

20. Accordingly, the 2nd respondent/Insurance Company is directed

to deposit the compensation amount of Rs.2,36,000/- 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.

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

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

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 18 July, 2023 cbs

VGKR,J MACMA No.2280 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2280 of 2012

18th July, 2023 cbs