Andhra Pradesh High Court - Amravati

Ankala Subba Ramaiah vs Dasari Satyanarayana on 25 September, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No.234 of 2014

JUDGMENT:

The appellant is claim petitioner and the respondents are

respondents in M.V.O.P.No.734 of 2010 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-V Additional District Judge

(Fast Track Court), Guntur. Questioning the legal validity of the

order of the Tribunal, the petitioner 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 petitioner filed the petition under Sections 140 and

166 of the Motor Vehicles Act, 1988 against the respondents

claiming compensation of Rs.2,00,000/- for the injuries sustained by

him in a motor vehicle accident that took place on 22.12.2008.

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

follows:

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The petitioner is working as General Officer in Andhra Bank,

Ponnur. On 22.12.2008 as there was bund by MRPS people, the

petitioner was going to Ponnur on his motor cycle bearing

registration No.AEE 0235 and when he reached near Mamillapalli

Cross Road at 8.00 a.m., a tractor bearing registration No.AP 07AP

8243 being driven by its driver in a rash and negligent manner at

high speed came in opposite direction and hit the motor cycle of the

petitioner on his right side, as a result, the petitioner fell down and

sustained severe injuries including fracture injuries. The S.H.O.,

Ponnur, registered a case in crime No.157 of 2008 against the driver

of the tractor for the offence punishable under Section 338 of IPC.

The 1st respondent is owner and the 2nd respondent is insurer of the

tractor, hence, both the respondents are jointly and severally liable

to pay compensation to the petitioner.

5. The 1st respondent was set ex parte. The 2nd

respondent/Insurance company filed a written statement by denying

the material averments of the claim petition. It is pleaded that the

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driver of the tractor had no valid and effective driving licence to drive

the tractor as well as there is no valid R.C. and fitness certificate to

the tractor, therefore, the Insurance company is not liable to pay any

compensation to the petitioner.

6. 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 in motor accident due to rash and negligent driving of the driver of Tractor bearing No.AP 07AP 8243 of 1st respondent?

2) Whether the petitioner is entitled to claim compensation, if so, to what amount and from whom?

3) To what relief?

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

the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.6 and

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

respondent/Insurance company, R.Ws.1 and 2 were examined and

Exs.B.1 to B.9 and Exs.X.5 and X.6 were marked.

VGKR,J MACMA No.234 of 2014

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 tractor and accordingly, allowed the claim petition and

awarded an amount of Rs.2,00,000/- towards compensation to the

petitioner with costs and interest at 8% p.a. from the date of petition

till the date of deposit against the 1st respondent 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.

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

record.

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

appellant/petitioner confined his arguments only to the aspect of

exoneration of the 2nd respondent/Insurance company from payment

of compensation to the petitioner.

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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 petitioner is legally

sustainable or not?.

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

2nd respondent/Insurance company from its liability of payment of

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

offending tractor was not holding valid driving licence by the date of

accident and his driving licence to drive the tractor was expired on

01.09.1996.

13. It is contended by the 2nd respondent/Insurance company that

the driver of the offending tractor was not holding valid and effective

driving licence at the time of accident and his licence was also

expired on 01.09.1996. In support of his contention, he relied on the

evidence of R.Ws.1 and 2. R.W.1 in his evidence deposed that the

driver of the offending tractor was not holding valid driving licence

and notices were issued to the owner and the driver of the tractor to

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produce driving licence particulars. The office copies of the notices

and acknowledgments are marked as Exs.B.1 to B.6. R.W.2 is the

Senior Assistant from R.T.A. Office, Vijayawada. According to him,

the driver of the tractor possessed LMV transport driving licence and

he obtained endorsement for tractor and trailer on 30.01.1988 and

later, the same was renewed from time to time and lastly, it was

renewed up to 01.09.1996 and thereafter, it was not renewed. The

material on record reveals that neither the driver nor the owner of

the offending tractor was examined to prove that the driver of the

offending tractor was holding valid driving licence at the time of

accident. Further, a perusal of Ex.A.2-charge sheet discloses that

the charge sheet was filed against the driver of the offending tractor

for the offence under Section 181 of the M.V.Act also for not

possessing valid driving licence. From the above evidence, it is

proved that the driver of the offending tractor did not possess valid

driving licence by the date of accident and his licence was expired

on 01.09.1996 and thereby, the 1st respondent committed breach of

the terms and conditions of the policy. Admittedly, the offending

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tractor of the 1st respondent was insured with the 2nd

respondent/Insurance company under Ex.B.1 policy and the policy

was also in force as on the date of accident.

14. The principle laid down by the Hon'ble Apex Court in National

Insurance Co. Ltd. Vs. Swaran Singh and others 1 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".

15. In Francisca Luiza Rocha Vs. K. Valarmathi2, the Hon'ble

Apex Court also held as under:

"6. In the present case the owner of the vehicle did not contest the proceedings to prove and establish that in

2004 (2) ALD (SC) 36

2018 ACJ 1430

VGKR,J MACMA No.234 of 2014

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."

16. For the foregoing discussion and in the light of the decisions of

the Hon'ble Apex Court referred supra, 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

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respondent/owner of the offending tractor, by filing an execution

petition and without filing any independent suit.

17. Insofar as awarding of interest @ 8% p.a. is concerned, since

the accident in question took place in the year 2008, this Court feels

that the Tribunal awarded exorbitant rate of interest, therefore, the

same has to be scaled down from 8% p.a. to 7% p.a.

18. Accordingly, the 2nd respondent/Insurance Company is