Andhra Pradesh High Court - Amravati

Bajaj Allianz General Insurance ... vs P.Sarojamma 4 Others on 8 May, 2023

 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                  M.A.C.M.A.No. 2828 of 2013

JUDGEMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioners and respondent No.1 in

M.V.O.P.No.766 of 2008 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-I Additional District Judge, Kurnool.

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 application.

3. The claim petitioners filed a claim petition under Sections

163-A and 166 of the Motor Vehicles Act, 1988 against the

respondents praying the Tribunal to award an amount of

Rs.2,50,000/- towards compensation for the death of P. Narayana

Reddy in a motor vehicle accident that occurred on 05.04.2008.

4. The brief averments of the claim petition are as follows:

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The 1st petitioner is wife and petitioner Nos.2 to 4 are sons

of the deceased. On 25.04.2008 at about 5.00 p.m. the deceased

along with one B.Srinivasa Reddy was standing at

Peddapothulapadu bus stage on Alampur cross road to

Shanthinagar R & B Road in order to go to their village Minnipadu.

At that time, one motor cycle bearing registration No.AP 21Q TR

8677, which was coming from Alampur chowrastha side towards

Shanthinagar, being driven by its driver in a rash and negligent

manner in high speed without blowing horn, came and hit the

deceased. As a result, the deceased fell down and received

bleeding injuries and later, he succumbed to injuries on

26.04.2008 while undergoing treatment in the Government

General Hospital, Kurnool. The 1st respondent is owner and the

2nd respondent is insurer of the motor cycle. Therefore, both the

respondents are liable to pay compensation to the claim

petitioners.

5. The 1st respondent was set ex parte.

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

denying the manner of accident. It is pleaded that the owner-

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cum-rider of the motor cycle was not holding a valid and effective

driving licence at the time of accident and therefore, the

Insurance company is not liable to pay compensation.

7. Based on the above pleadings, the Tribunal framed the

following issues for trial:

1. Whether the accident occurred on 25.04.2008 due to rash and negligent driving of the driver of motor cycle bearing registration No.AP 21Q TR 8677 being driven by its driver?

2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? and

3. To what relief?

8. 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.16 were marked. On behalf of the 2nd respondent/Insurance

company, R.Ws.1 to 3 were examined and Exs.B.1 to B.5 were

marked.

9. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

VGKR,J MACMA No.2828 of 2013

allowed the petition in part and awarded a sum of Rs.2,40,000/-

towards compensation to the claim petitioners. Being aggrieved

by the impugned award, the 2nd respondent/Insurance company

filed the appeal.

10. Heard learned counsels for both the parties.

11. The grounds urged by the appellant/Insurance company are

that the Tribunal failed to see that the owner-cum-rider of the

offending motor cycle is having only LLR by the date of accident

and though the owner-cum-rider of the offending vehicle had no

valid and effective driving licence and thereby, the policy

conditions were violated, the Tribunal erroneously awarded

compensation to the claim petitioners.

12. Now, the point for determination is:

Whether the order passed by the Tribunal needs any interference?

13. POINT: The 1st petitioner is wife and petitioner Nos.2 to

4 are sons of the deceased P. Narayana Reddy. The 1st

respondent is the registered owner-cum-rider and the 2nd

VGKR,J MACMA No.2828 of 2013

respondent is the insurer of the offending vehicle and the policy

was in force on the date of accident.

14. The case of the petitioners is that on 25.04.2008 at about

5.00 p.m. the deceased along with one B.Srinivasa Reddy was

standing at Peddapothulapadu bus stage on Alampur cross road

to Shanthinagar R & B Road in order to go to their village

Minnipadu. At that time, one motor cycle bearing registration

No.AP 21Q TR 8677, which was coming from Alampur

chowrastha side towards Shanthinagar, being driven by its driver

in a rash and negligent manner in high speed without blowing

horn, came and hit the deceased. As a result, the deceased fell

down and received bleeding injuries and later, he succumbed to

injuries on 26.04.2008 while undergoing treatment in the

Government General Hospital, Kurnool.

15. On a perusal of the material on record, it is proved that the

accident occurred purely due to rash and negligent riding of the

rider of the offending vehicle, because of that, the deceased

sustained fatal injuries and later succumbed to injuries while

undergoing treatment in the hospital. The learned Tribunal also

VGKR,J MACMA No.2828 of 2013

gave the same finding. Therefore, there is no need to interfere

with the said finding recorded by the learned Tribunal.

16. In the instant case, as on the date of the accident, the

deceased was aged about 50 years. On appreciation of the

evidence, the Tribunal came to the conclusion that the monthly

income of the deceased was Rs.2,500/- and as such, the his

annual income arrived at Rs.30,000/-, from out of which, 1/3 of

income was deducted towards personal expenses of the

deceased and the contribution to the family members of the

deceased arrived at Rs.20,000/- p.a. On appreciation of the

evidence and after giving cogent reasons, the learned Tribunal,

by applying the multiplier applicable to the age of the group

deceased "11", ordered compensation of Rs.2,20,000/-

(Rs.20,000/- x 11) to the claim petitioners towards of loss of

dependency, Rs.15,000/- towards loss of estate, Rs.2,500/-

towards transportation charges, and Rs.2,500/- towards funeral

expenses. In total, a compensation of Rs.2,40,000/- was

awarded by the Tribunal to the claim petitioners. The

compensation awarded by the Tribunal is just and reasonable.

VGKR,J MACMA No.2828 of 2013

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

the quantum of compensation awarded by the Tribunal.

17. It is clearly pleaded by the petitioners that by the date of

accident, the rider of the offending vehicle is having only LLR and

he is not having a valid and effective driving licence to drive the

offending motor cycle. For the reasons best known to the 1st

respondent, even though he received notice, he did not turn up

and was set ex parte and he did not adduce any evidence to

show that by the date of accident, he was having valid and

effective driving licence to drive the offending motor cycle.

18. To substantiate its contention, the 2nd respondent/Insurance

company examined the Typist of RTA Office, Mahabubnagar, as

R.W.2 and got marked LLR issued in the name of the 1st

respondent as Ex.B.2 through R.W.2. The evidence of R.W.2

coupled with Ex.B.2 clinchingly proves that by the date of

accident, the rider of the offending vehicle was having LLR only

and he was not having valid and effective driving licence to drive

the offending vehicle. But, the learned Tribunal awarded

compensation directly against both the respondents.

VGKR,J MACMA No.2828 of 2013

19. This Court in National Insurance Co. Ltd., Vs. Chakali

Rangaiah1 held that "a person holding learner‟s licence is also to

be considered as „duly licenced‟ and as such, compensation

granted by the Tribunal is upheld".

20. The Division Bench of the High Court of Kerala held in

Abdul Gafoor K.P. Vs. New India Assurance Company Ltd.2

held as under:

"If the insured owner fails to discharge the statutory liability under Section 5 of the M.V. Act, it should visit him with all inevitable consequences. In this context, in this case, the insured-owner himself violated all the aforesaid relevant statutory provisions though, in the light of the conditions in Ext.B1 certificate of insurance as also the condition in Ext.B2 learner's certificate, he was also to scrupulously follow the provisions under Rule 3 of the Rules. In such circumstances, it can be safely concluded that the appellant had violated the conditions of policy as also the condition specifically incorporated in Ext.B2 learner's driving licence besides violating the provisions under 'the Rules' as also 'the

2008 ACJ 2089

2018 ACJ 577

VGKR,J MACMA No.2828 of 2013

M.V. Act' as mentioned above. Above all, in this case, the categorical finding of the Tribunal is to the effect that the claimant, who was a pedestrian, was knocked down or in other words, the accident was caused, solely due to the negligence of the appellant in riding the motor vehicle and as noticed hereinbefore, he rode the vehicle on that crucial day on the strength of a leaner's licence issued hardly ten days ago. In such circumstances, it can be said that the respondent herein, the insurer has succeeded in establishing that the appellant herein, who was the owner cum driver of the offending vehicle had violated not only the conditions of policy but also the conditions in the learner's driving licence on the strength of which he has driven the vehicle at the time of accident. In the light of the discussions, we do not find any illegality or error in the judgment of the Tribunal making the insurance company liable to pay the compensation to the third party and at the first instance and at the same time granting the insurance company the right to recover the amount paid to satisfy the award in favour of the third party, from the insured owner".

VGKR,J MACMA No.2828 of 2013

21. The Hon‟ble Supreme Court of India in its judgment in

Francisca Luiza Rocha Vs. K. Valarmathi3 held as under:

"6. In the present case the owner of the vehicle did not contest the proceedings to prove and establish that in spite of best efforts the fact that the driver did not have a valid driving licence was not known to him. What alone stood proved (by the Insurer) was that the driver of the vehicle did not have a valid driving licence on the date of the accident. As the driver had a licence but validity of the same had expired, we are of the view that the conclusion of the High Court that the said fact, by itself, constitutes a fundamental breach of the terms and conditions of the policy of insurance is not correct.

7. On the basis of the aforesaid finding, we will have to hold that the insurance company (M/s. United India Insurance Co. Ltd.) i.e. Respondent No. 2 herein would be liable to satisfy the award and thereafter seek recovery, if so advised, from the owner of the vehicle (Mrs. K. Valarmathi) i.e. Respondent No. 1. Consequently, with the aforesaid modification we dispose of the appeal in the above terms."