V. Shivaji 2 Others vs K. Murali, Hyd. Another
2022 Latest Caselaw 390 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.1749 of 2010

JUDGMENT:

Challenging the order and decree, dated 30.06.2010, passed in

M.V.O.P.No.532 of 2008 on the file of the Chairman, Motor

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

Sangareddy (for short "the Tribunal"), the claimants filed the

present appeal.

The facts, in issue, are as under:

The claimants, who are the husband and children of one

V.Pushpa (hereinafter referred to as "the deceased"), filed a petition

under Section 166 of the Motor Vehicles Act claiming compensation

of Rs.4,50,000/- for the death of the deceased, who died in a motor

vehicle accident that occurred on 21.05.2006. It is stated that on that

day the deceased, 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 including the deceased sustained grievous

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

been registered against the driver of the Car. Immediately after the

accident, the deceased was shifted to Government Hospital,

Mannaekkali and she died while shifting to Gandhi Hospital,

Secunderabad. It is further stated that the deceased was aged about

41 years and was earning Rs.4,500/- per month as maid servant.

Hence, the claimants 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 and earnings of the deceased and

the relationship of the claimants with the deceased. 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 licence to drive

such vehicle and the vehicle was roadworthy to ply. It is further

contended that the claimants are 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 and, therefore, 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 petitioners are 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 B4 were marked.

After analyzing the evidence available on record, the Tribunal

while awarding compensation of Rs.2,80,000/- with proportionate

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

realization, held that since the deceased had traveled in a hired

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 claimants.

Heard the learned Counsel appearing on either side and

perused the record.

Learned Counsel for the appellants/claimants 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 submitted 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 claimants 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 appellants/claimants would submit that as

per the principles laid down by the Apex Court in the recent

decisions, the income of the housewife is to be taken at Rs.3,000/-

per month and the claimants are also entitled to future prospects. It

is also submitted that the Tribunal did not award any amount under

conventional heads. 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 deceased was traveling in the vehicle

as gratuitous passenger and, therefore, the Tribunal has rightly

(2017) 4 SCC 796

dismissed the claim against the 2nd respondent and the said order

does not require any interference.

On considering the arguments advanced by both the learned

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

under:-

1. Whether the claimants are entitled for enhancement of compensation?

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

Point No.1:

Admittedly, the claimants filed a claim-petition under Section

166 of the Motor Vehicles Act, and the rash and negligent act on the

part of the driver of the Innova Car No.AP 29 H 4329 was proved. A

perusal of the judgment of the Tribunal would show that after

considering the age and avocation of the deceased, the Tribunal has

rightly awarded an amount of Rs.2,80,000/- under the head of loss

of income, which needs no interference. However, in National

Insurance Company Limited Vs. Pranay Sethi and others2, the Apex

Court held that "the reasonable figures on conventional heads,

namely, loss of estate, loss of consortium and funeral expenses

2017 ACJ 2700

should be Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively".

A perusal of the impugned order would show that the Tribunal did

not award any amount under conventional heads. In view of the

law laid down by the Apex Court in Pranay Sethi's case (2 supra), the

claimants are entitled to Rs.70,000/- under conventional heads.

Thus, in all the claimants are entitled to Rs.3,50,000/-.

Point No.2:-

Insofar as the liability of the 2nd respondent/Insurance

Company is concerned, the Tribunal observed that R.W.1 stated in

his evidence that in Ex.B4-161 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 another3, 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 contradicting the maker thereof in the manner set out in the said proviso."

(2007) 7 SCC 378

Further, in National Insurance Co. Ltd. V. Saju P.Paul4, 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.5 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

owner of the offending vehicle in execution proceedings as per the

(2013) 2 SCC 41

2012 ACJ 1852

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 deceased

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

Bhanvara Vs. Iffco Tokio General Insurance Company Limited6,

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 claimants 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 by enhancing the

compensation amount awarded by the Tribunal from Rs.2,80,000/-

to Rs.3,50,000/- . The enhanced amount shall carry interest @ 7.5%

per annum from the date of passing of the order i.e., from 30.06.2010

till the date of realization. The 2nd respondent-Insurance Company

is directed to deposit the said amount to the credit of the O.P. along

2019(5) ALD SC 287

with accrued interest within two months from the date of receipt of

a copy of this judgment, and then recover the said amount from the

1st respondent-owner. The enhanced amount shall be apportioned

among the claimants equally. 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 Gkv/Gsn