D.Janardhan Reddy vs K.Murali And Anr
2022 Latest Caselaw 388 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.1737 of 2010

JUDGMENT:

Challenging the order and decree, dated 30.06.2010, passed in

M.V.O.P.No.458 of 2008 on the file of the Chairman, Motor

Accidents Claims Tribunal-cum-Principal District Judge, Medak at

Sangareddy (for short "the Tribunal"), the claimant filed the present

appeal.

The facts, in issue, are as under:

The claimant filed a petition under Section 166 of the Motor

Vehicles Act claiming compensation of Rs.1,50,000/- for the injuries

sustained by him in a motor vehicle accident that occurred on

21.05.2006. It is stated that on that day the claimant, along with

others, was traveling in Innova Car bearing No. AP 29 H-4329 from

Shirdi, Tuljapur to Hyderabd and when the said vehicle reached

near Nirna Cross Roads on N.H.No.9, the driver of the said vehicle

drove it in a rash and negligent manner with high speed and dashed

to a Bus-stand building, due to which the inmates of the vehicle

sustained grievous injuries and one person died on the way to

hospital. Basing on the complaint, a case in Crime No.67 of 2006 has

been registered against the driver of the Car. The claimant was

shifted to Government Hospital, Mannaekkali and from there to

Gandhi Hospital, Secunderabad. The claimant had also taken

treatment in Apollo Hospital, Hyderabad and incurred an amount

of Rs.50,000/- for his treatment. It is further stated that the claimant

had sustained permanent disability due to the fracture injuries.

Hence, the claimant filed claim-petition against the respondents 1

and 2, being the owner and insurer of the said Car.

Before the Tribunal, the 1st respondent remained ex parte and

the 2nd respondent filed counter denying the manner in which the

accident took place, age, avocation, earnings of the claimant and also

denied the injuries sustained by the claimant and the medical

expenditure incurred by him. It is also denied by the 2nd

respondent that the vehicle involved in the accident was insured

with the 2nd respondent and the person, who drove the vehicle, was

having valid and subsisting driving license to drive such vehicle and

the vehicle was roadworthy to ply. It is further contended that the

claimant is not entitled to claim interest on non-pecuniary damages

and also the interest claimed is highly excessive. In the additional

counter, it is stated by the 2nd respondent that as per the police

record, the crime vehicle was used for hire purpose at the time of

accident and the policy was issued for private use, as such, the 1st

respondent has violated the terms and conditions of the policy, as

such the 1st respondent alone is liable to pay the compensation and

the 2nd respondent has no liability to pay any compensation and the

petition is liable to be dismissed against the 2nd respondent.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident occurred due to the rash and negligent driving of the driver of the crime vehicle?

2) Whether the petitioner is entitled for compensation, if so, at what quantum and from whom?

3) To what relief?

On behalf of the claimant, P.Ws.1 and 2 were examined and

got marked Exs.A1 to A5. On behalf of the respondents, R.W.1 was

examined and Exs.B1 to B5 were marked.

After analyzing the evidence available on record, the Tribunal

while awarding compensation of Rs.26,707/- with proportionate

costs and interest @ 7.5% per annum from the date of petition till

realization, held that since the claimant has traveled in a hire

vehicle, it is against the terms and conditions of the insurance policy

and, therefore, the Insurance Company is not liable to pay

compensation and it is the 1st respondent, the owner of the Car,

alone is liable to pay the compensation. Challenging the said

finding and also not being satisfied with the quantum of

compensation awarded by the Tribunal, the present appeal is filed

by the claimant.

During pendency of the appeal, the 1st appellant/claimant

died and as such appellants 2 to 4 were impleaded as the legal

representatives of the claimant.

Learned Counsel for the appellant/claimant submitted that

the Tribunal dismissed the claim against the 2nd respondent on the

ground that the 1st respondent has violated the terms and conditions

of the insurance policy by using the crime vehicle for hire purpose.

He further submits that in case of violation of policy conditions

including driver of the offending vehicle not having valid driving

licence at the time of accident, gratuitous passenger etc., still the

Insurer has to pay the compensation to the claimant at the first place

and shall recover the same from the owner of the vehicle later. In

support of his contention, he relied upon the judgment of the Apex

Court in Manuara Khatun and others v. Rajesh Kumar and others1.

Insofar as the enhancement of compensation is concerned, learned

Counsel for the claimant would submit that the compensation

awarded by the Tribunal is on lower side and that the Tribunal

ought to have awarded adequate compensation. Therefore, he

prayed to enhance the compensation awarded by the Tribunal.

On the other hand, the learned Standing Counsel for the

Insurance Company submitted that with regard to the quantum of

compensation, the Tribunal has adequately granted the

compensation and the same needs no interference by this Court.

Insofar as the liability is concerned, he submits that the vehicle was

used for hire purpose and the claimant was traveling in the vehicle

as gratuitous passenger at the time of accident and, therefore, the

Tribunal has rightly dismissed the claim against the 2nd respondent

and the said order does not require any interference.

(2017) 4 SCC 796

On considering the arguments advanced by both the learned

Counsel, the issues that arise for consideration in this appeal are as

under:-

1. Whether any cause of action survives to the legal heirs of the injured/claimant?

2. Whether the vehicle was used for hire purpose and claimant, who was traveling in the vehicle, comes under the purview of gratuitous passenger and if the claimant comes under the purview of gratuitous passenger, pay and recovery can be ordered against the insurer?

Point No.1: -

In Kannamma v. Deputy General Manager, Karnataka State

Road Trans.Corpn.2 a Full Bench of High Court of Karnataka dealt

with such type of question as to whether in case of claim for

compensation for personal injuries and towards expenses etc., on

death of claimant, the claim-petition abates. The question was

answered observing that whether the injured/claimant dies as a

consequence of bodily injuries sustained in the motor accident, then,

his legal representatives can prosecute the claim relates to loss to the

estate of the deceased. In the present case, there is nothing on record

to show that the appellant has died as a result of suffering injuries in

the accident.

1991 ACJ 707

In Smt. Ram Ashari and others v. HRTC and another3 this

type of question cropped up before Himachal Pradesh High Court,

which was answered observing that in case where appellant was

injured in an accident, on his death during pendency of appeal for

enhancement of compensation, the appeal abates, since the appeal

which was filed for personal injuries cannot be continued by his

legal representatives. It was further observed that an action in torts

for claim of compensation for damages on account of injuries

suffered by an injured as a right personal to the injured and this

right cannot be continued by legal heirs.

It is settled law that claim for permanent injury would abate

on the death of original claimant. A Full Bench of Madhya Pradesh

High Court on a reference in the case of Bhagwati Bai v. Bablu4

held as under:-

"Thus in case of personal injury not resulted in death the legal representative of such person, who was injured and who died subsequently not on account of accident but for some other reason cannot maintain an application for compensation for personal injury sustained in an accident under sub-Section (1) of Section 166 of the Motor Vehicles Act."

Relying upon the aforesaid judgments of various High Courts,

recently, the Punjab Haryana High Court in Sukhdev Singh through

his L.Rs v. Ramesh Kumar (FAO-131-2012 (O&M), dt. 14.03.2019)

(2005) 3 RCR (Civil) 128

2007 ACJ 682

held that the cause of action does not survive to his legal heirs since

the injured/claimant died during pendency of the appeal.

In the instant case also, the injured/claimant has died during

pendency of the appeal, hence the appeal for enhancement of claim

awarded for permanent injury filed under Section 173 of the Motor

Vehicles Act, would also abate on the death of claimant and would

not survive to his legal representatives. Even otherwise, on merits

also, I find that the compensation awarded by the Tribunal is just

and adequate and no reason is there to enhance it.

Point No.2:-

Insofar as the liability of the 2nd respondent is concerned, the

Tribunal observed that R.W.1 stated in his evidence that in Ex.B5-

161 Cr.P.C. statement, the witness, Krishna Reddy stated that they

hired the Innova Vehicle and traveled in it. In Rajendra Singh v.

State of U.P. and another5, the Apex Court held that "the statements

under Section 161 Cr.P.C. being wholly inadmissible in evidence,

could not at all be taken into consideration." Relying upon the said

judgment, in N.Rama Krishna Reddy v. M.Santhakumari and

another (C.R.P.No.2939 of 2013) this Court held as under:-

"It is well settled that a statement made under Section 161 Cr.P.C. is not a substantive piece of evidence. However, in view of the proviso to Sub-section (1) of Section 162 Cr.P.C., the statement can be used for the limited purpose of

(2007) 7 SCC 378

contradicting the maker thereof in the manner set out in the said proviso."

Further, in National Insurance Co. Ltd. V. Saju P.Paul6, the

Apex Court took note of entire previous case law on the subject

mentioned and examined the question in the context of Section 147

of the M.V. Act. While allowing the appeal filed by the Insurance

Company by reversing the judgment in Saju P.Paul v. National

Insurance Co. Ltd.7 of the High Court, it was held on facts that since

the victim was traveling in offending vehicle as "gratuitous

passenger" and hence, the Insurance Company cannot be held liable

to suffer the liability arising out of accident on the strength of the

insurance policy. However, the Apex Court keeping in view the

benevolent object of the Act and other relevant factors arising in the

case, issued the directions against the Insurance Company to pay the

awarded sum to the claimants and then to recover the said sum from

the insured in the same proceedings by applying the principle of

"pay and recover".

Recently, relying upon the said judgment, the Apex Court in

Manuara Khatun (1 supra) held that the direction to the Insurance

Company, 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 to first pay the awarded sum to

the claimants and then recover the paid awarded sum from the

(2013) 2 SCC 41

2012 ACJ 1852

owner of the offending vehicle in execution proceedings as per the

law laid down in Para No.26 of National Insurance Co. Ltd. V. Saju

P.Paul (3 supra).

It is not in dispute that the Innova Car was insured and

Ex.B2-Insurance Policy clearly indicates that the accident has

occurred during the policy period, it can be said that the claimant

was travelled as a gratuitous passenger in the crime vehicle. In Anu

Bhanvara Vs. Iffco Tokio General Insurance Company Limited8,

the Apex Court while dealing with the case of gratuitous passenger

directed the insurer to pay the awarded sum to the claimant therein

and recover the same from the insured in the same proceedings.

For the aforesaid discussion and in view of the benevolence

object of the Motor Vehicles Act, even though the liability of

Insurance Company is exonerated, still the Insurance Company is

liable to pay the compensation to the claimant at the first instance

and then recover the same from the owner of the offending vehicle

by invoking the principle "pay and recover" as laid down by the Apex

Court in Manuara Khatun v. Rajesh Kr. Singh (1 supra).

Accordingly, the appeal is partly allowed, directing the 2nd

respondent-Insurance Company to deposit the compensation

amount of Rs.26,707/- with proportionate costs, as awarded by the

Tribunal, to the credit of the O.P. along with accrued interest within

two months from the date of receipt of a copy of this judgment, and

2019(5) ALD SC 287

then recover the said amount from the 1st respondent-owner. There

shall be no order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall

stand dismissed.

_____________________ JUSTICE G. SRI DEVI 02.02.2022 Gsn