Andhra Pradesh High Court - Amravati

Bajaj Allianz General Insurance ... vs Delhi Transport Corporation And Ors on 6 September, 2024

APHC010612992023
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI             [3311]
                           (Special Original Jurisdiction)

                   FRIDAY, THE SIXTH DAY OF SEPTEMBER
                    TWO THOUSAND AND TWENTY FOUR

                                PRESENT

         THE HONOURABLE MS JUSTICE B S BHANUMATHI

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 299/2024

Between:

Bajaj Allianz General Insurance Company Limited      ...APPELLANT

                                  AND

Mondithoka Venkata Swamy and Others               ...RESPONDENT(S)

Counsel for the Appellant:

   Sri. NARESH BYRAPANENI

Counsel for the Respondent(S):

   Ms. BHAVANI K

The Court made the following:
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                                                    M.A.C.M.A.No.299 of 2024


            THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                       M.A.C.M.A No.299 of 2024
JUDGMENT:

This appeal is preferred against the order dated 30.08.2023, in

M.V.O.P.No.39 of 2019 on the file of the Chairman, Motor Accidents

Claims Tribunal-cum-XI Additional District Judge, Tenali, by which the

Tribunal awarded compensation of Rs.8,08,600/- with proportionate

costs and interest at the rate of 7.5% per annum, to the claimant on

account of the injuries sustained by him, in an accident occurred on

20.02.2019. The Tribunal fastened liability on the appellant/insurance

company to pay the compensation awarded and enabled it to proceed

against the 2nd respondent/owner of the offending vehicle to recover the

same.

2. Being aggrieved by the award, the appellant/insurance company

preferred appeal before this Court on the grounds that the award is

contrary to law, weight of evidence; that the Tribunal erred in making the

appellant liable to pay compensation and recover the same from the 2 nd

respondent/owner of the offending vehicle when he is not holding

driving licence to drive the vehicle; that the Tribunal grossly erred in

making the appellant alone liable when the accident was a head on

collision; the Tribunal grossly erred in taking the monthly income of the

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1st respondent/claimant at Rs.6,000/- without any basis; that the

Tribunal grossly erred in taking the disability at 80% when the

amputation above the knee would be only 60%; that the Tribunal erred

in awarding an amount of Rs.8,08,600/- under various heads without

any basis; that the Tribunal erred in awarding interest 7.5% instead of

6% per annum as per the decision of the apex Court in Sarla Verma

and Ors. Vs. Delhi Transport Corporation and Ors1.

3. Heard Sri Naresh Byrapaneni, learned counsel for the appellant

and Ms. Bhavani K, learned counsel for the 1st respondent.

4. The main contention of the appellant is that the Tribunal erred in

awarding compensation as against the appellant also in spite of the

observation of the Tribunal that the driver of the insured vehicle had no

driving licence as on the date of the accident. It is further contended

that when there is no liablity to pay, the Tribunal cannot direct the

insurance company to first pay and then recover, as was held by the

Supreme Court in Balu Krishna Chavan Vs. The Reliance General

Insurance Company ltd. and others2. Further, it is contended that

there is delay of one day in reporting the accident to the police since the

accident allegedly occurred on 20.02.2019 whereas the FIR was

registered on 21.02.2019. The quantum of compensation granted is

AIR 2009 SC 3104

2023 ACJ 1546

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also challenged stating that it was on high side. The learned counsel for

the appellant further submitted that the Tribunal failed to note that there

is contributory negligence on the part of the petitioner/claimant.

5. The learned counsel for the 1st respondent/claimant submitted

that the Tribunal has rightly awarded the amount of compensation for

the reasons recorded in the order itself.

6. The points for consideration are:

1. Whether the Tribunal erred in fastening the liability against the insurance company to first pay and then recover in spite of the observation that there was no driving licence to the driver of the insured vehicle as on the date of the accident?

2. Whether there was any contributory negligence of the petitioner/claimant in causing the accident?

3. Whether the amount of compensation awarded by the Tribunal is correct or not?

POINT No.1:

7. At this juncture, it is pertinent to refer the decision of the Full

Bench decision of the Supreme Court in National Insurance Company

Limited Vs. Swaran Singh and others3, wherein at paragraph No.106,

it was held as follows:

2004 ACJ 1

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"(i) xx xx xx

(ii) xx xx xx

(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-

section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.

(v) The Court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or

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breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act."

Since the decision is still in force and it is not the case of either party

that the legal proposition above noted is not holding the field as on date,

apart from proving that there is violation of condition of policy due to not

holding valid driving licence, it is the obligation of the insurer to further

establish that the accident occurred because of the said violation.

8. In the present case, though the 1st respondent had no valid

driving licence as on the date of the accident, i.e., 20.02.2019,

subsequently, he obtained licence on 15.11.2019, thereby, he was

competent (aged about 42 years) to hold licence, but he did not hold

licence as on the date of the accident. Therefore, merely because he

did not hold the driving licence, the conclusion cannot be drawn that the

accident occurred for that reason of not holding the driving licence or

due to his incompetency to drive the insured vehicle. In the absence of

such proof, there is no error to fasten the liability on the insurer. The

Supreme Court in Balu Krishna Chavan (2nd supra), held at paragraph

Nos.8 to 10 as follows:

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"8. Hence, the only aspect for our consideration herein, is as to whether in the facts and circumstances of the present case, an order to direct the Insurance Company to "pay and recover", is required to be made. On this aspect, the law is well settled that if the liability of the Insurance Company is decided and they are held not to be liable, ordinarily, there shall be no direction to "pay and recover". However, in the facts and circumstances arising in each case, appropriate orders are required to be made by this Court to meet the ends of justice.

9. In the instant case, the Appellant has relied on the judgment dated 21.02.2017 passed by this Court in Civil Appeal No(s). 3047 of 2017 titled as "Manuara Khatun and Ors. v. Rajesh Kr. Singh & Ors". In the said case also, a Bench of this Court, having referred to the earlier decisions in Para-15 and 16 of that Judgment, has concluded that normally, there would be no order to "pay and recover".

However, in the said facts, this Court, to meet the ends of justice, had taken into consideration the fact situation though, the claimant therein, was a 'gratuitous passenger' and had kept in view that the benevolent object of the Act and had directed the payment by the Insurance Company and to recover the amount.

10. Therefore, on the legal aspect, it is clear that in all cases such order of "pay and recover" would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice."

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9. If there is no liability, the insurance company cannot be directed

to first pay and then recover the same. In the present case, for the

reasons already recorded, since liability can be fastened on the

insurance company as well, there is no merit in the appeal. As the

respondent/owner has not preferred any appeal, this Court does not go

into the order enabling the insurance company to recover the amount

from the respondent/owner, insofar as this point is concerned.

POINT No.2:

10. According to the claimant, while he was going on his motor-cycle,

the driver of the insured vehicle drove it in opposite direction without

care and caution and caused the accident which resulted in multiple

injuries all over the body of the claimant and later leading to amputation

of the right leg above knee. The 1st respondent has not turned up to

deny the negligence. The Tribunal has rightly appreciated the evidence

of the claimant, both oral and documentary, and came to the conclusion

that the accident was caused because of the sole negligence of the

respondent/claimant. Hence, there is no need to interfere with such

finding.

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POINT No.3:

11. The claimant sought compensation of Rs.11,00,000/- with interest

@ 12% per annum from the date of the petition till the date of

realization, whereas, the Tribunal awarded total amount of

Rs.8,08,600/- in the following manner:

      Sl.                    Head                     Amount
      No.                                             Awarded
       1 Pain and suffering                         Rs.20,000=00
       2 Nervous shock and loss of amenities        Rs.10,000=00
          attendant charges etc.,
       3 Towards extra nourishment                  Rs.10,000=00
       4 Loss of income during the period of        Rs.18,600=00
          Hospitalization and bed rest etc.,
       5 Loss of compensation                      Rs.7,50,000=00
                                             Total Rs.8,08,600=00

Since the claimant is doing business in pulses, the Tribunal arrived at

notional income of the claimant @ Rs.6,000/- per month and as the

disability resulted in 80%, the amount of compensation of loss is

calculated at Rs.4,800/- per month and by applying the multiplier '13'

relating to persons with age group of 50 years, an amount of

Rs.7,48,800/- was awarded and the same was rounded off to

Rs.7,50,000/-.

12. In fact, for calculating the amount of compensation payable in

case of permanent disability, the principles are well settled. In this

regard, it is pertinent to refer the decision of the apex Court in Raj

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Kumar vs. Ajay Kumar and Ors.4 wherein the principles governing the

permanent disability have been laid down at paragraph No.13 as

follows:

"13. We may now summarize the principles discussed above:

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

( 2011 ) 1 SCC 343

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13. Since the petitioner was doing business in pulses, the amputation

would certainly cause loss of earning capacity. The loss of income also

can only be reasonably assessed as it is difficult to arrive at actual

percentage of loss of earnings. Therefore, in the present case,

calculating the loss of future earnings @ 80% is not on high side. Thus,

the amount of compensation granted by using the multiplier method

and awarding an amount of Rs.7,48,000/- which is rounded to

Rs.7,50,000/- is proper.

14. The amount of compensation granted under other heads is quite

reasonable. As such, the award does not require interference on any