The vs Swaran Singh And
2023 Latest Caselaw 3604 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1675 of 2015

JUDGEMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are petitioners and respondent No.1 in

M.V.O.P.No.503 of 2011 on the file of the Chairman, Motor Accident

Claims Tribunal-cum-IV Additional District Judge, Kadapa. The

appellant filed the present 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 petitioners filed the petition under Section 166 of

the Motor Vehicles Act, 1988 claiming compensation of

Rs.16,00,000/- for the death of S. D. Babji, who is husband of 1st

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

accident that took place on 26.07.2006.

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

as follows:

On 26.07.2006 at about 9.00 p.m. when the deceased was

crossing a road in front of the office of Biotechnology Research

Centre, Karakambadi road, Tirupati, a motor cycle bearing

registration No.AP 04K 2103 of the 1st respondent came from

Karakambadi side in a rash and negligent manner and dashed the

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

died on the spot. The 1st respondent is the owner and the 2nd

respondent is the insurer of the motor cycle, hence, both the

respondents are jointly and severally liable to pay compensation to

the petitioners.

5. The respondents filed counters separately by denying the

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

and pleaded that the accident occurred due to non-observance of

traffic rules by the deceased.

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It is pleaded by the 2nd respondent that the rider of the motor

cycle was not having valid driving licence at the time of accident and

thereby, there is a clear violation of policy conditions, as such, the

Insurance company is not liable to pay any compensation to the

petitioners.

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

following issues were settled for trial by the Tribunal:

1) Whether the deceased S.D.Babji died in a motor vehicle accident that occurred on 26.07.2006 at 9.00 p.m. opposite Biotrim, Tirupati on Tirupati-Karakambadi road due to rash and negligent driving of the rider of the motor cycle bearing No.AP 04K 2103 of the 1st respondent being insured with 2nd respondent?

2) Whether the respondents are jointly and severally liable to pay compensation?

3) Whether the petitioners are entitled for compensation, if so, to what amount and from whom?

4) To what relief?

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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.6 were

marked. On behalf of the respondents, R.Ws.1 and 2 were

examined and Ex.B.1 was 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 due to rash and negligent driving of the rider of

offending motor cycle and accordingly, allowed the petition in part

granting an amount of Rs.12,82,000/- towards compensation to the

petitioners with proportionate costs and interest at 7.5% p.a. from

the date of petition till the date of deposit against both the

respondents. Aggrieved against the said order, the 2nd

respondent/Insurance company preferred the instant appeal.

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

record.

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10. Learned counsel for the appellant/Insurance company mainly

contended that the Tribunal failed to see that the rider of the

offending motor cycle was not holding a valid driving licence at the

time of accident which is a gross violation of the conditions of the

policy.

11. Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court and to what extent?

12. POINT: In order to prove the rash and negligent driving of

the driver of the offending motor cycle, the petitioners relied on the

evidence of P.Ws.1 and 3. P.W.1 is none other than the wife of the

deceased and she is not an eye witness to the accident. P.W.3 is

an eye witness to the accident. He deposed that he witnessed the

accident and while the deceased was crossing a road, the offending

motor cycle came from Karakambadi side and dashed the deceased,

as a result, the deceased sustained severe injuries and died on the

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spot. There is nothing in the cross-examination of P.W.2 to discredit

his evidence and the contra suggestions put to him were also

denied by him. The petitioners also relied on Ex.A.1-certified copy

of first information report and Ex.A.4-certified copy of charge sheet.

Ex.A.1 goes to show that first information report was registered

against the rider of the offending motor cycle i.e., 1st respondent.

Ex.A.2 clearly goes to show that after completion of investigation,

the Investigating Officer filed a charge sheet against the rider of the

offending motor cycle. The evidence of P.W.3 coupled with Exs.A.1

and A.4 clearly proves about the rash and negligent driving of the 1st

respondent/rider of the offending motor cycle resulting in the

instantaneous death of the deceased. On appreciation of the

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

Therefore, this Court feels that there is no need to interfere with the

said finding given by the Tribunal.

13. As per Ex.A.2-certified copy of inquest report and Ex.A.3-

certified copy of post mortem report, the age of the deceased was

VGKR,J MACMA No.1675 of 2015

43 years. The multiplier applicable to the age group of the

deceased is "14" as per the decision of the Hon'ble Supreme Court

of India in Sarla Varma case. The dependents on the deceased are

three in number. It is the case of the petitioners that the deceased

was working as a Forest Section Officer at the time of his death and

drawing a monthly salary of Rs.12,476/-. By giving cogent reasons,

the Tribunal fixed the monthly income of the deceased as

Rs.11,000/- i.e., Rs.1,32,000/- per annum, and after deducting 1/3rd

income towards personal expenses of the deceased and by

applying the appropriate multiplier '14' to the age group of the

deceased as per Sarla Varma Case, arrived the loss of dependency

to the family members of the deceased at Rs.12,32,000/-

(Rs.88,000/- (Rs.1,32,000/- - Rs.44,000/-) x multiplier '14'). Besides,

the Tribunal awarded Rs.5,000/- towards funeral expenses,

Rs.5,000/- towards transport charges, Rs.30,000/- towards loss of

consortium to the 1st petitioner and Rs.10,000/- towards love and

affection. By giving cogent reasons, the Tribunal came to the

VGKR,J MACMA No.1675 of 2015

conclusion that the petitioners are entitled to a total compensation of

Rs.12,82,000/-. This Court finds that there is no legal flaw or

infirmity in the said finding given by the Tribunal, therefore, it

warrants no interference.

14. It is not in dispute that the 1st respondent is rider cum owner of

the offending motor cycle, the 1st respondent insured the motor

cycle with the 2nd respondent/Insurance company under Ex.B.1-copy

of policy, the policy was also in force as on the date of accident and

the policy covers the risk of a third party.

15. It is the contention of the 2nd respondent/Insurance company

that the 1st respondent was not having valid driving licence at the

time of accident, so, there is a clear violation of conditions of the

policy. R.W.1, who is the Administrative Officer of the 2nd

respondent, deposed in his evidence that the 1st respondent/rider of

the motor cycle was not having valid and effective driving licence at

the time of accident as per the charge sheet. R.W.2, who is the

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Junior Assistant-cum-Stenographer in the office of the Deputy

Commissioner of Transport, Kadapa, also deposed that at the time

of accident, the rider of the motor cycle was not having valid driving

licence to drive the motor cycle. The evidence of R.Ws.1 & 2 clearly

goes to show that the 1st respondent/rider of the offending motor

cycle was not having valid driving licence to ride the motor cycle at

the time of accident.

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 petitioners in the

first instance and later recover the same from the 1 st

respondent/owner of the offending motor cycle, 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.12,82,000/- 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 motor cycle 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 st 21 July, 2023 cbs

VGKR,J MACMA No.1675 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1675 of 2015

21st July, 2023 cbs