Merapalli Audilakshmamma 2 Ors vs Mallikarjuna Reddy Anr
2023 Latest Caselaw 4778 AP

    THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

                     M.A.C.M.A.No. 1395 of 2013

JUDGMENT:-

1)      Aggrieved by the impugned Award, dated 30.01.2012,

passed in M.V.O.P. No. 234 of 2008 on the file of

I    Additional      District   Judge-cum-I     Additional    Motor

Accidents Claims Tribunal, Nellore, whereby, granting the

claim     of     Rs.3,85,000/-     to   the    Claimants     towards

compensation payable by 1st respondent and exonerating

the 2nd respondent - insurance company; this instant

Appeal is preferred by the claim petitioners, questioning

the legal validity of the Award 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 the petition under Section

166 of the Motor Vehicles Act, 1988, [the 'M.V. Act']

against        the   respondents    claiming     compensation     of

Rs.4,00,000/- for the death of Mirapalli Malyadri, [the

'deceased'], who is the husband of Claimant No. 1 and
                                2



father of Claimant Nos. 2 and 3 in a motor vehicle accident

that took place on the intervening night on 23/24.06.2007.


4)     Facts

germane to dispose of the Appeal may briefly be

stated as follows: -

i. On the intervening night of 23/24.06.2007 the

deceased along with others were proceeded on a

motor van bearing registration No. AP26 W 0827 to

Buchireddypalem from Nellore and when reached

near Pothireddypalem Girijana Colony, Kovur

Mandal, due to rash and negligent driving of the

driver, the vehicle dashed against the stationary lorry

bearing No. AP26 U 9784 resulting the death of the

deceased.

ii. The Station House Officer, Kovur Police Station,

registered a case in Crime No. 100 of 2007 against

the driver of the offending vehicle for the offence

punishable under Section 304-A of Indian Penal

Code, 1860 ['I.P.C.']. The 1st respondent is the owner

and the 2nd respondent is insurer of the offending

vehicle, hence, all the respondents are jointly and

severally liable to pay compensation to the

petitioners.

5) The 1st respondent remained ex parte. The 2nd

respondent filed the written statement denying the claim of

the Claimants and further pleaded that the entire

negligence is on the part of the lorry driver but not on the

part of the van.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident in question was occurred due to rash and negligent driving of the driver of motor van bearing No. AP26 W 0827?

2) Whether the petitioners are 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 petitioners, P.Ws.1 and 2 were examined and

Exs.A.1 to A.4 were marked. On behalf of the 2nd

respondent, R.W.1 was examined and Exs.B.1 and B.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 due to rash and

negligent driving of the driver of offending van and

accordingly, allowed the claim petition in part and awarded

an amount of Rs.3,85,000/- with proportionate costs and

interest at 9% per annum from the date of petition till the

date of deposit 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

appellants/petitioners preferred the present appeal.

9) Heard learned counsels for both the parties and

perused the record.

10) Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court, if so, to what extent?

11) POINT: The learned counsel for the Claimants

would submit that, the Tribunal without considering the

legal position in National Insurance Co. Ltd. Vs. Swaran

Singh and others1, without applying the 'pay and recover'

principle, fastened the liability against the 1st respondent

[owner of the offending vehicle] only and dismissed the

claim against the 2nd respondent [insurance company].

12) The Appellants are not disputing the quantum of

compensation awarded by the Tribunal. Therefore, the only

legal ground which is required to be considered in this

Appeal is, whether any liability has to be fastened on the

insurer [2nd respondent]?

13) In order to prove the rash and negligent driving by

the driver of the offending vehicle, the Claimants have

relied on the evidence of P.Ws. 1 and 2 and Ex. A1. Ex. A1

is the attested copy of the First Information Report. Ex. A3

2004 (2) ALD (SC) 36

is the attested copy of the charge-sheet. On considering the

oral and documentary evidence available on record, the

Tribunal came to a conclusion that the incident in question

occurred due to rash and negligent driving by the driver of

the offending van. The said finding is not challenged by the

respondents. Therefore, I do not find any legal flaw or

infirmity in the said finding given by the Tribunal.

14) Coming to the compensation, the monthly income of

the deceased was arrived at Rs.3,000/- per month by the

Tribunal by assailing reasons and since the dependents are

three in number, making deduction of 1/3 rd towards

personal and living expenses of the deceased and, as such,

the contribution of the deceased was taken as Rs.2,000/-

per month. So, the annual contribution comes to

Rs.24,000/-. The Tribunal by applying relevant multiplier

of '15', awarded an amount of Rs.3,60,000/- towards loss

of dependency. In addition to the above amount, the

Tribunal also awarded an amount of Rs.15,000/- towards

loss of consortium to the 1st Claimant; an amount of

Rs.5,000/- towards funeral expenses and an amount of

Rs.5,000/- towards loss of estate of the deceased to the

Claimants. In total, the Tribunal awarded an amount of

Rs.3,85,000/- towards compensation to the Claimants.

15) As stated supra, the quantum of compensation of

Rs.3,85,000/- which was granted by the Tribunal is not

challenged by the respondents. In-fact, the quantum of

compensation awarded by the Tribunal is not at all

disputed by the Appellants herein. The contention of the

Appellants is that, without applying the 'pay and recover'

principle, the Tribunal exonerated the insurance company

and fastened total liability on the 1st respondent.

16) The learned Counsel for the United India Insurance

Company Limited [2nd respondent] argued that, since the

deceased was gratuitous passenger in the offending

vehicle, the insurer is not liable to pay any compensation.

In order to prove the contention of the 2nd respondent, the

2nd respondent - insurer examined its Assistant Manager

as RW.1. As per his evidence, the offending vehicle is

insured with the 2nd respondent insurance company under

Ex. B1 and the policy is in force. As per RW.1's evidence,

Ex. B1 policy covers the risk of third partis, two employees

and one non-fare paying passenger in a goods vehicle.

17) The legal position, in this regard, is not res nova and

the same has been well settled. The Hon'ble Apex Court in

the case of Anu Bhanvara Etc. Vs. Iffco Tokio General

Insurance Company Limited & Others2, had an occasion

to deal with the same issue. In that decision, the Hon'ble

Apex Court held in paragraph No. 11, as under:

"11. We have heard learned counsel for the parties and perused the record as well as the various decisions cited by learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case."

18) The Claimants, in the present case, are none other

than the wife and minor children of the deceased. The 1st

claimant, aged about 29 years, lost her husband in an

Civil Appeal Nos. 6231-6232 of 2019, dated 09.08.2019.

accident occurred in the year 2007. Due to untimely death

of the deceased, the Claimants are starving for food and

lost their dependency. Therefore, the Claimants cannot be

compelled to struggle, further recovery of the amount.

19) As stated supra, as per own evidence of the insurance

company, Ex. B1 - policy covers the risk of third parties.

Therefore, the ratio laid down in the aforesaid decision of

the Hon'ble Apex Court is squarely applicable to the

present facts of the case. In that case also, the contention

of the insurance company was that the claimant is a

gratuitous passenger traveled in the goods vehicle. Here, in

the present case also, the vehicle is goods vehicle.

20) Another plea taken by the insurance company is that

the offending van is a transport vehicle, but the driver of

the offending vehicle possessed non-transport light motor

vehicle driving license. The insurer further pleaded that the

driver of the offending vehicle is not having a valid driving

license. The evidence of RW.1, coupled with Ex. B1 policy,

would reveal that the driver of the offending vehicle was

holding driving license of light motor vehicle [non-

transport] and transport license is not renewed.

21) The principle laid down in Swaran Singh [1st cited

supra] is that, even in case of absence, fake or invalid

license 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.

22) For the foregoing discussion, the 2nd

respondent/Insurance Company is directed to deposit the

quantum of compensation amount of Rs.3,85,000/- 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 van by filing an

execution petition and without filing any independent suit.

The order of the Tribunal in all other respects shall remain

intact.

23) The Appeal is, accordingly, disposed of. No order as

to costs.

24) As a sequel, miscellaneous petitions, if any, pending

in the Appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J

.10.2023 sm

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1395 of 2013

.10.2023

sm