Vadai Sombai vs United India Insurance Company ...
2022 Latest Caselaw 6826 Tel

Citation : 2022 Latest Caselaw 6826 Tel
Judgement Date : 15 December, 2022

Telangana High Court

Vadai Sombai vs United India Insurance Company ... on 15 December, 2022

Bench: M.G.Priyadarsini

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           HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI


                          M.A.C.M.A. NO.1260 OF 2014


Judgment:


           This appeal is filed by the appellant/claimants, being aggrieved by the

award and decree dated 11-03-2013, made in O.P No.380 of 2011 on the file of the

Chairman, Motor Accidents Claims Tribunal-Cum-III Addl. District Judge, (Fast

Track Court), Asifabad (for short, the Tribunal).


      For the sake of convenience, hereinafter, the parties are referred to as per

their array before the Tribunal.


      The facts of the case are as follows:


The claimants have filed the claim petition under Section 166(1)(c) of the Motor

Vehicles Act claiming compensation of Rs. 6.00 lakhs for the death of the

deceased the one called Vinod Kumar, who died in a motor vehicle accident that

occurred on 20.09.2010 at about 14.00 hours. It is stated by the petitioner that on

the fateful day the deceased was proceeding towards Ankusapur Road, vagu on a

tractor bearing No. Ap15V-6816 as a labour. The driver of the tractor drove the

vehicle in a rash and negligent manner and advised him to sit on front mudguard,

due to which he fell down and died on the spot.
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       Based on the report Police, Kaghznagar rural registered a case in Cr. No.44

of 2010 against the driver of the tractor bearing No. AP15V-6816 under Section

304-A IPC stating that the accident occurred due to rash and negligent driving and

filed charge sheet against him.


       It was further contended that the deceased was hale and healthy and was

working as tractor labour and used to earn Rs.6,000/- per month. As the accident

occurred due to rash and negligent driving by the tractor driver, the claimants,

filed claim petition against the respondents 1 & 2, being owner and the insurer of

the tractor.

Before the tribunal respondent no. 1 remained ex parte and respondent no. 2

filed counter denying the averments of the claim petition and the manner in which

the accident occurred, including the age, avocation and income of the deceased. It

is further contended that a false case was registered and that the driver of the

tractor is not having valid and subsisting driving license. Furthermore, he also

contended that the amount claimed is excessive and exorbitant and prayed for

dismissal of the case.

Heard both sides and perused the material available on record.

The main contentions advanced by the learned counsel appearing for

appellants is that the tribunal has erred in holding that the respondent no. 1, who is

the owner of the tractor is only liable to pay compensation awarded by the tribunal.

It is contended that the learned Tribunal ought to have considered the fact that the

deceased was working as a labour and was a third party to the policy. Therefore,

insurance company cannot evade its liability of paying compensation and the

tribunal ought to have directed the insurance company to first pay the

compensation to the claimants and then recover the same from the owner of the

vehicle by invoking the principle of pay and recover.

Per contra, the learned counsel for respondent no. 2, Standing Counsel for

insurance company has contended that as there was breach of terms and conditions

of the insurance policy by the owner of the offending vehicle, the tribunal has

rightly exonerated the insurance company from the liability of payment of

compensation and the said findings need no interference by this court.

Admittedly, there is no dispute with regard to the manner of the accident and

the rash and negligent driving of the offending vehicle by its driver in causing the

accident on 29.10.2009. Even the learned counsel for respondent No. 2 has not

seriously disputed the quantum of compensation amount awarded by tribunal. But,

the only contention of the learned Counsel for respondent No. 2 is that the

deceased was not a labour and he was an unauthorized passenger and was sitting

on Mud-guard of the tractor and therefore, as there was breach of terms and

condition of the Policy, the respondent No. 1 alone is liable to pay the

compensation.

The Apex Court in the case of National Insurance Company Ltd., v.

Baljit Kaur and Others1, at para No. 21, has observed as under:-

"21....We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in New India Assurance Co. v. Satpal Singh (2000) 1 SCC 237. The said decision has been overruled only in New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal..."

Further, as per the decision of the Apex Court in National Insurance

Company Ltd. v. Swaran Singh and others2, the insurer is under obligation to

indemnify the compensation amount payable to the third party and the insurance

company may recover the same from the insured as per the Doctrine of "pay and

recover".

For the reasons discussed above and in view of the decisions mentioned

Supra, the M.A.C.M.A. is allowed in part and while maintaining the quantum of

(2004) 2 SCC 1

(2004) 3 SCC 297

compensation, following the doctrine of 'pay and recover', the respondent No. 2

Insurance Company is directed to satisfy the award by paying the compensation

amount, as was awarded by the tribunal, to the claimants herein, in the first