The New India Assurance Co Ltd vs Ayesha Begum 5 Ors
2021 Latest Caselaw 1334 Tel

            THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                       MACMA.No.3007 of 2009

JUDGMENT:

The appellant-New India Assurance Company Limited (insurer)

is the respondent No.2 in OP.No.180 of 2006 on the file of the Motor

Accident Claims Tribunal cm I Additional District Judge, Karimnagar.

The respondents No.1 to 5 are the claimants and the respondent No.6

(owner of the offending vehicle) is respondent No.1 in the OP.

2. The parties are referred to as they were arrayed in the original

petition.

3. The claimants No.1 to 5 are the legal heirs of the deceased,

Hussain Bin Abdullah, who was pillion rider on the vehicle driven by

one Syed Khader. On 22.05.2003, in the evening, the deceased and

the Syed Khader were going on a scooter bearing No.AP 15 T 5979 to

Bommakal bypass road to the office of the Lorry Owners Association.

After completing of their work, while they were returning,

the deceased, who was sitting as pillion rider, fell down form the

scooter when the driver of the scooter drove the vehicle at a high

speed in a rash and negligent manner and lost control over it. Both the

driver and the pillion rider received injuries. The deceased was shifted

to Government Hospital, Karimnagar and thereafter, he was shifted to

a private hospital viz. PIMS, Karimanagar, where the deceased died

while undergoing treatment. The Karimnagar Rural Police registered a

case in Cr.No.158 of 2003 under Section 304-A IPC against the driver

of the scooter but closed the case as abated after the death of the

driver of the scooter. The deceased was stated to be 30 years and

working as lorry driver in Mama Transport and Roadways and earning

Rs.3,500/- per month as wages. Hence, the claimants claimed

compensation of Rs.4,64,000/-.

4. The respondent No.1-owner of the vehicle remained ex parte.

The respondent No.2-insurance company filed counter denying the

averments in the claim petition regarding the manner of the accident

and the age, income and occupation of the deceased. It was asserted

that unless it is proved that the driver of the vehicle and the owner of

the vehicle have effective driving license, the insurance company is not

liable to pay compensation. It was also asserted that the claimants

manipulated the case against the insured vehicle and filed a case to

get compensation.

5. The tribunal below, on appreciation of oral and documentary

evidence, awarded compensation of Rs.2,68,700/- along with interest

at 7.5% per annum.

6. The rider of the vehicle died and the owner of the vehicle

remained ex parte. Thus, no evidence was adduced including the

production of driving license of the respondent No.1. However, relying

on the judgment of the Supreme Court in Oriental Insurance

Company Ltd. v. Nanjappan [AIR 2004 SC 1630], the tribunal below

held that the insurance company is liable to pay the compensation at

the first instance and recover the same from the owner. The principle

of pay and recover has been reiterated by the Supreme Court in

NATIONAL INSURANCE CO. LTD. v. SWARAN SINGH1.

7. Insofar as the income of the deceased is concerned, the tribunal

below fixed the notional income at 1800/- per month. The deceased

was stated to be working as a lorry driver and earning Rs.3,500/- per

(2004) 3 SCC 297

month. The claimants relied on Ex.A4, driving licence of the deceased,

to show that the deceased was having transport license of heavy

goods vehicle. The tribunal below referred to labour guide and basing

on G.O.Ms.No.30 dated 27.07.2000 wherein the minimum salary of the

heavy vehicle driver is fixed as Rs.3,700/- per month.

The tribunal below did not give much weight to the evidence of P.W.2,

who is the employer of the deceased. However, taking into

consideration the fact that the deceased was having licence to drive

heavy goods vehicle, the tribunal below fixed the notional income at

Rs.1,800/- per month and by deducting 1/3rd out the same, the

contribution to the family was fixed at Rs.1,200/- for the purpose of

determining total compensation and accordingly, awarded

Rs.2,68,700/- including funeral expenses, loss of estate and loss of

consortium with interest at 7.5% per annum.

8. Mr. Katta Laxmi Prasad, learned counsel for the appellant,

contended that the principle of pay and recover cannot be applied to

this case, as the driving license of the rider of the vehicle and the

owner of the vehicle is not produced in the Court and adverse

inference has to be drawn in that regard. Further, it is also argued that

the insurance policy in the instant case is an act policy and not

comprehensive policy, as such, covers only third party and the

deceased is not a third party.

9. This Court is not convinced with such argument. The deceased

was a pillion rider and not a family member of the owner of the

vehicle. Thus, he is a third party. Regarding non-production of the

driving license, the deceased cannot be held responsible for such

lapses. Hence, the principle of pay and recover applies to the instant

case. The insurance company is liable to pay the compensation

awarded by the tribunal below. It is needless to mention that the

insurance company is entitled to recover the compensation amount

from the owner of the vehicle for violation of the terms of the

insurance policy, if any. In the circumstances, this Court does not find

any merit in the appeal.

The civil miscellaneous appeal is dismissed. Pending

miscellaneous applications, if any, shall stand closed. There shall be no

order as to costs.

__________________ B. VIJAYSEN REDDY, J April 23, 2021 DSK