The New India Assurance Co. Ltd., vs Syed Khaleelulrahaman Another
2023 Latest Caselaw 4482 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 2730 of 2012

JUDGMENT:

Aggrieved against the award dated 30.03.2012 passed by the

Chairman, Motor Accident Claims Tribunal-cum-XIII Additional

District Judge, Vijayawada, in M.V.O.P.No.758 of 2006, the 2nd

respondent/Insurance company has preferred the instant 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 petitioner filed the petition under Section 163-A of

the Motor Vehicles Act, 1988 (for short 'the Act') read with Rule 455

of the A.P. Motor Vehicles Rules, 1989 against the respondents

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

him in a road accident that took place on 01.05.2006.

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

follows:

On 01.05.2006 at about 12.45 p.m. the petitioner was

proceeding on his motor cycle bearing registration No.AP 02M 6878

from Vijayawada to Bhavanipuram and when he reached a ghat

road on NH-9, a mini van bearing registration No.AP 9U 5177 being

driven by its driver in a rash and negligent manner came in opposite

direction and hit the motor cycle of the petitioner, due to said impact,

the petitioner fell down and sustained severe grievous injuries. The

1st respondent is owner and the 2nd respondent is insurer of the van,

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

all the averments in the claim petition. It is pleaded that the accident

occurred due to collision of two vehicles and therefore, the insurer of

the motor cycle of the petitioner is also necessary party and as the

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petitioner not added the necessary party, the petition is not

maintainable.

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 a motor vehicle accident on 01.05.2006 due to rash and negligent driving of mini van bearing No.AP 9U 5177?

2) If so, whether the petitioner is entitled to the compensation as prayed for?

3) To what relief?

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

the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.9 and

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

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

Exs.B.1 and B.2 and Exs.X.3 and X.4 were marked.

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

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

came to the conclusion that the accident occurred due to rash and

VGKR,J MACMA No.2730 of 2012

negligent driving of the driver of the offending van and accordingly,

allowed the petition in part and granted an amount of Rs.1,40,000/-

towards compensation to the petitioner with 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 appellant/

Insurance company 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 by this Court, if so, to what extent?

11. POINT: The claim petition is filed under Section 163-A of

the Act whereunder the petitioner need not prove the rash and

negligent driving of the driver of the offending vehicle. It is sufficient

to prove that the vehicle was involved in the accident.

12. In order to establish the manner of accident, the petitioner got

examined himself as P.W.1 and so also relied on Ex.A.1-attested

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

sheet. The evidence of P.W.1 coupled with Exs.A.1 and A.4 clearly

proves that the accident in question took place by the use of the

offending van being driven by its driver in a rash and negligent

manner. The 2nd respondent did not choose to examine even the

driver of the offending van as he is the best person to speak as to

the manner of accident. On appreciation of the evidence on record,

the Tribunal also came to the same conclusion. I do not find any

legal flaw or infirmity in the said finding given by the Tribunal.

13. The material on record reveals that the petitioner was

hospitalized for a period of 14 days as an inpatient. In order to

prove the injuries, the petitioner relied on the evidence of P.W.2 and

Ex.B.2-wound certificate, Ex.A.6-discharge summary of the

petitioner given by the Global Medical Center, Vijayawada, and

Ex.X.1-case sheet. On considering the medical evidence on record,

an amount of Rs.5,000/- is awarded towards grievous injury,

Rs.5,000/- is awarded towards loss of earnings for a period of two

months @ Rs.2,500/- per month, Rs.4,000/- is awarded towards

VGKR,J MACMA No.2730 of 2012

pain and suffering, and amount of Rs.1,000/- is awarded towards

transport charges.

14. In order to establish the medical expenses, the petitioner

relied on Ex.A.5-bunch of medical bills and Ex.A.6-discharge

summary. The material on record goes to show that the petitioner

paid an amount of Rs.45,000/- to Global Hospitals and P.W.2 also

conducted a surgery to the petitioner. On considering the said

circumstances of the case, I am of the considered view that it is just

and proper to award an amount of Rs.45,000/- towards medical

expenses.

15. In total, the petitioner is entitled to an amount of Rs.60,000/-

towards compensation for the injuries sustained by him. But the

Tribunal awarded Rs.1,40,000/- towards compensation. Therefore,

the same has to be reduced to Rs.60,000/-

16. Learned counsel for the appellant/Insurance company would

submit that driver of the offending vehicle was not having any driving

licence as on the date of accident and he got his licence renewed

VGKR,J MACMA No.2730 of 2012

after the accident, as such, the Insurance company is not liable to

indemnify the 1st respondent/owner.

17. As per the evidence of R.W.2, who is the Junior Assistant in

the Regional Transport Office, Krishna, coupled with Ex.B.2-extract

of driving licence of the driver of the 1st respondent, the driver of the

offending vehicle obtained driving licence to drive transport vehicles

on 01.06.1999, which was valid up to 31.05.2002, again he obtained

transport endorsement on 01.07.2002, which was valid up to

30.06.2005, and later he obtained licence for transport on

02.05.2006, which was valid up to 01.05.2009. In the present case,

the accident in question occurred on 01.05.2006. In view of the

above reasons, it is clear that the driver of the offending vehicle was

not having valid and effective driving licence to drive the transport

vehicle as on the date of accident and thereby, the 1st respondent

committed breach of terms and conditions of the policy. It is not in

dispute that the offending vehicle 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.

VGKR,J MACMA No.2730 of 2012

18. 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".

19. 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 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

2004 (2) ALD (SC) 36

2018 ACJ 1430

VGKR,J MACMA No.2730 of 2012

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."

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

the Hon'ble Apex Court referred supra, this Court is of the opinion

that 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 respondent/owner of the offending vehicle, by

filing an execution petition and without filing any independent suit.

VGKR,J MACMA No.2730 of 2012

21. At this stage, learned counsel for the appellant/2nd respondent-

Insurance company would submit that in pursuance of the interim

order dated 10.09.2012 passed by this Court in

M.A.C.M.A.M.P.No.5499 of 2012, the Insurance company had

deposited half of the decretal amount before the Tribunal and the

said amount was permitted to be withdrawn by the petitioner vide

orders dated 04.08.2015 in M.A.C.M.A.M.P.No.2738 of 2015.

22. In the result, the appeal is partly allowed reducing the

compensation of Rs.1,40,000/- awarded by the Tribunal to

Rs.60,000/-. Since the appellant/Insurance Company has already

deposited 50% of compensation amount of Rs.1,40,000/- awarded

by the Tribunal, the appellant is directed to pay the balance

compensation amount, if any, with interest at 7.5% p.a. from the

date of petition till the date of payment to the petitioner in the first

instance within two months from the date of this judgment, and later

recover the total compensation amount of Rs.60,000/- with costs

and interest from the 1st respondent/owner of the offending vehicle

by filing an execution petition and without filing any independent suit.

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

The order of the Tribunal in all other respects shall remain intact.

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 25 September, 2023 cbs

VGKR,J MACMA No.2730 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.2730 of 2012

25th September, 2023 cbs