Sarvasuddi Lakshmi And Another vs Nadurupati Putta Kotayya And 2 ...
2023 Latest Caselaw 4655 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.1287 of 2012

JUDGMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.2 of 2009 on the file of the Chairman,

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

Vizianagaram. Questioning the legal validity of the order of the

Tribunal, the petitioners preferred the instant appeal.

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 163-A of

the Motor Vehicles Act, 1988 against the respondents claiming

compensation of Rs.3,00,000/- for the death of their son, namely, S.

Santhosh Kumar, in a motor vehicle accident that took place on

30.09.2006.

VGKR,J MACMA No.1287 of 2012

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

as follows:

On 30.09.2006 the deceased during the course of his

employment as driver of a van bearing registration AP 35D 3884

started from Vizianagaram to go to Sriakakulam on the left side of

the road and when he reached near Pydibheemavaram at about

8.30 p.m., a lorry bearing registration No.AP 7T 4842 being driven

by its driver in a rash and negligent manner at high speed came in

opposite direction and dashed against the van resulting in the

instantaneous death of the deceased. The S.H.O., J.R. Puram

registered a case in crime No.147 of 2006 against the driver of the

lorry for the offences punishable under Sections 337 and 304-A of

IPC and Section 181 of the M.V. Act. The 1st respondent is driver,

the 2nd respondent is owner and the 3rd respondent is insurer of the

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

liable to pay compensation to the petitioners.

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

respondent/Insurance company filed a counter by denying the

VGKR,J MACMA No.1287 of 2012

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

is pleaded that the driver of the offending lorry was not having valid

driving licence at the time of accident and the compensation claimed

by the petitioners is excessive and exorbitant.

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.Santosh Kumar) succumbed to the injuries sustained by him in the pleaded accident that occurred due to rash and negligent driving of the lorry bearing No.AP 7T 4842 by its driver R.1?

2) Whether the petitioners are entitled to any compensation? If so, what quantum and what is the liability of the respondents?

3) To what relief?

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

the petitioners, P.W.1 was examined and Exs.A.1 to A.3 were

marked. On behalf of the 3rdrespondent/Insurance company, R.Ws.1

and 2 were examined and Exx.B.1 to B.3 and Ex.X.1 were marked.

VGKR,J MACMA No.1287 of 2012

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 driver of

offending lorry and accordingly, allowed the claim petition in part

and awarded an amount of Rs.1,48,500/- with proportionate 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 the exoneration of the Insurance company from

the liability of payment of the compensation amount, the

appellants/petitioners preferred the present appeal.

9. Heard Sri G. Sai Narayana Rao, learned counsel for the

appellants/petitioners, and Smt. A. Jayanthi, learned counsel for the

3rd respondent/Insurance company, and perused the record.

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

appellants/petitioners confined his arguments only to the aspect of

exoneration of the 3rd respondent/Insurance company from payment

VGKR,J MACMA No.1287 of 2012

of compensation to the petitioners. Although the appeal has been

filed on the other grounds, the appellants did not press the said

grounds during the course of arguments in the appeal.

11. Therefore, the only legal ground that has to be considered in

this appeal is, whether the exoneration of the Insurance company

from payment of compensation to the petitioners is legally

sustainable or not?.

12. As seen from the impugned order, the Tribunal exonerated the

3rd respondent/Insurance company from its liability of payment of

compensation to the petitioners on the ground that the driver of the

offending vehicle was not holding valid driving licence at the time of

accident.

13. It is the contention of the 3rd 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. In order to establish its case, the Insurance company relied

on the evidence of R.Ws.1 and 2 and Exs.B.1 to B.4.

VGKR,J MACMA No.1287 of 2012

14. R.W.1, who is the Assistant Manager of the 3 rd respondent,

deposed in his evidence that the 1st respondent/driver of the

offending vehicle was not having valid and effective driving licence

at the time of accident, and even though a notice was got issued to

the 2nd respondent to cause production of driving licence of the 1 st

respondent, the 2nd respondent refused to receive the notice.

R.W.2, who is the Junior Assistant working in the office of the

Dy.Transport Commissioner, Guntur, also deposed that after

verification of the record, the Dy. Transport Commissioner, Guntur,

issued Ex.X.1 letter stating that no driving licence stands in the

name of the 1st respondent. Though R.Ws.1 and 2 were cross-

examined, nothing was elicited from them to discredit their testimony

with regard to non-possessing of driving licence by the 1st

respondent. The evidence of R.Ws.1 and 2 coupled with Ex.X.1

clinchingly establishes that the 1st respondent was not having driving

licence at the time of accident.

15. The material on record shows that no copy of driving licence of

the 1st respondent was filed either by the petitioners or by the

VGKR,J MACMA No.1287 of 2012

respondent Nos.1 and 2 before the Tribunal. Moreover, respondent

Nos.1 and 2 did not choose to contest the petition and they were set

ex parte. A perusal of Ex.B.3-M.V.I. report reveals that the 1st

respondent had not produced his driving licence before the Motor

Vehicles Inspector at the time of inspection. As seen from Ex.A.3-

charge sheet, the police filed the charge sheet for the offences

punishable under Sections 304-A and 337 of IPC and also Section

181 of the M.V.Act against the 1st respondent holding him

responsible for the accident.

16. From the foregoing discussion, it is clearly proved that the 1 st

respondent was not having driving licence at the time of accident

and thereby the 2nd respondent violated the terms and conditions of

Ex.B.2 policy.

17. 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

2004 (2) ALD (SC) 36

VGKR,J MACMA No.1287 of 2012

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.

18. Since it is not in dispute that the offending vehicle of the 2 nd

respondent was insured with the 3rd respondent/Insurance company

under Ex.B.2-copy of policy and the policy was also in force as on

the date of accident and in the light of the decision of the Hon'ble

Apex Court referred supra, 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 vehicle, by filing an execution petition and without

filing any independent suit.

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

directed to deposit the compensation amount of Rs.1,48,500/- with

VGKR,J MACMA No.1287 of 2012

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 vehicle by filing an execution petition and without filing any

independent suit. The order of the Tribunal with regard to the liability

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

in all other respects stands undisturbed.

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

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

appeal shall stand closed.

______________________________ V.GOPALA KRISHNA RAO,J th 4 October, 2023 cbs

VGKR,J MACMA No.1287 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.1287 of 2012

4th October, 2023 cbs