Andhra Pradesh High Court - Amravati

The Branch Manager vs Kummari Rani 5 Others on 27 August, 2024

APHC010880362016

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3367]
                          (Special Original Jurisdiction)

     TUESDAY ,THE TWENTY SEVENTH DAY OF AUGUST
          TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

     MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
                    NO: 1055/2016

Between:
The Branch Manager                              ...APPELLANT

                                AND

Kummari Rani 5 Others and Others            ...RESPONDENT(S)

Counsel for the Appellant:
  S A V RATNAM

Counsel for the Respondent(S):
  1. N J SUNIL KUMAR
  2. S MURALI MOHAN
  3. VENKATA RAMA RAO KOTA

The Court made the following:

JUDGMENT:

This appeal is directed against the order of the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-XII

Additional District Judge at Guntur (hereinafter called as 'the

Tribunal') in M.V.O.P.No.152 of 2010 dated 19.03.2014.

2. The appellant is the insurer of the Tata Indica Car

bearing No.AP 13N 7835 (hereinafter referred to as "crime

car"). The respondent Nos.1 to 3 herein are the wife and

children of one Kummari Sekhar Roofus @ Sekhar

(hereinafter referred to as "deceased") respectively. The

respondent No.4 is the owner of the said crime car. The

respondent Nos.5 and 6 are owner and insurer of Lorry

bearing No.AP 7TU 7939 (hereinafter referred to as "lorry")

respectively.

3. For the sake of convenience, the parties hereinafter

referred to as they arrayed before the tribunal.

4. The case of the claimants, in the petition before the

Tribunal is that:

i). On 10.04.2009, at about 03.00 a.m., while the

deceased along with family proceeding towards

Vijayapuri South in crime car, on the way near IBP

Petrol Bunk, near Indira Nagar of Dachepalli, the

driver of the said car drove the same in a rash and

negligent manner, lost control over the steering and

hit the backside of the lorry, resulted, the deceased,

who sit in the left front seat, died on the spot.

ii). Being dependents, they claimed compensation of

Rs.5,00,000/- against the owner and insurer of the

crime car as well as the owner and insurer of the

lorry.

5. The respondent No.2/insurer of the crime car filed

written statement denying the averments in the petition and

pleaded that the driver of the crime car is not having valid

driving license to drive the same; that the accident occurred

only due to the negligence on the part of the driver of the

lorry, who parked the vehicle without putting the rear lights

and thereby, prayed to dismiss the petition.

6. The respondent No.4/insurer of the lorry filed written

statement denying the averments in the petition and pleaded

that there is no negligence on the part of the driver of the

lorry and the accident occurred only due to the negligence on

the part of the driver of the crime car; that the charge sheet

also filed against the driver of the crime car; that the

claimants have no cause of action to file petition against this

respondent and thereby, prayed to dismiss the petition

7. The Tribunal settled the following issues for enquiry

basing on the material:

"1.Whether the accident occurred due to rash and negligent driving by the drivers of 1) Tata Indica car bearing No.AP 13N 7835 2) Lorry bearing No.AP 7TU 7939?

2.Whether the petitioners are entitled to compensation, if so, from whom? and

3.To what relief?"

8. During enquiry, on behalf of the claimants, PWs.1 and

2 was examined and Exs.A.1 to A.4 were marked. On behalf

of the respondents, R.Ws.1 and 2 were examined and Exs.B.1

to B.4 were exhibited.

9. On the material, the Tribunal, having come to the

conclusion that the accident occurred due to the rash and

negligent driving of the crime car by its driver and that there

is violation of terms and conditions of Ex.B.4 policy by the

owner of the said car, held that the claimants are entitled for

the compensation of Rs.6,85,000/-, with interest at 7.5% per

annum from the date of petition till 21.01.2011 and from

21.06.2012 to till the date of realization against the

respondent No.1, for the death of the deceased in the

accident. As well directed the respondent No.2 to deposit the

said compensation at first instance and then recover the

same from respondent No.1 by filing execution petition.

10. It is against the said award; the present appeal was

preferred by the appellant/insurer of the crime car.

11. Heard Smt.S.A.V.Ratnam, learned counsel for the

appellant/insurer of the crime car, Sri K.Venkata Ramarao,

learned counsel for respondent Nos.1 to 3/claimants and Sri

S.Murali Mohan, learned counsel for the respondent

No.6/insurer of the lorry.

12. Sri Smt.S.A.V.Ratnam, learned counsel for the

appellant/insurer submits that the tribunal erred in ordering

pay and recovery, when there is clear violation of terms and

conditions of the policy; that the accident occurred due to the

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

of the crime car and thereby, prays to consider the present

appeal.

13. Sri K.Venkata Ramarao, learned counsel for respondent

Nos.1 to 3/claimants and Sri S.Murali Mohan, learned

counsel for the respondent No.6/insurer of the lorry submits

that the tribunal after considering the material on record

rightly awarded compensation to the claimants as well rightly

ordered pay and recovery by the appellant, there are no valid

grounds urged to interfere with the order of the tribunal and

thereby, prays to dismiss the appeal.

14. Now, the only point that arises for determination is

"whether the award passed by the tribunal is liable to be set

aside, if so, to what extent?"

15. POINT:

It is not in dispute about the death of the deceased in

the accident, involvement of crime car as well lorry in the

incident. It is also an undisputed fact that the claimants as

well as the insurer of the lorry did not prefer any appeal

against the award passed by the Tribunal.

16. The only contention raised by the appellant is that the

Tribunal erred in ordering pay and recovery when there is

violation of policy conditions by the owner of the said car.

17. It is not in dispute that the insurer of the car issued

Ex.B.4 policy towards private car as well and no premium

was paid to cover the risk of passengers who are travelling in

a private car. Even as per the testimony of P.W.2, during

cross examination, he hired the car for charges fixed at

Rs.5.50/- per km. Thereby, the owner of the car clearly

violated the terms of policy by running the car as if transport

vehicle.

18. Now,it is relevant to refer a judgment of Hon'ble

Supreme Court in Manuara Khatun v. Rajesh Kr.Singh1,

wherein at paragraph No.17 and 21 held as follows:

"17. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra

1 2017 (4) SCC 796, AIR 2017 SC 1204

because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul's case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.

21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra." (emphasis supplied)

19. In view of the above settled legal position by the Hon'ble

Supreme Court, the Tribunal can direct the insurer to

reimburse the compensation at first instance and then

recover the same from the owner, if there are any violations of

terms and conditions of the policy issued to the vehicle

concerned. Thereby, the tribunal by elaborately discussing

the said aspect, rightly ordered pay and recovery of

compensation by the insurer of the crime car to the

claimants. This Court has no valid reason to interfere with

the said finding arrived at by the tribunal.

20. Coming to the rash and negligence is concerned, it is

the categorical finding made by the tribunal under issue No.1