The United India Insurance ... vs M.Padma 6 Ors
2022 Latest Caselaw 172 Tel

 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
                           AT HYDERABAD
    THURSDAY, THE TWENTIETH DAY OF OCTOBER TWO
               THOUSAND AND ELEVEN


         HON'BLE SRI JUSTICE G. BHAVANI PRASAD
           Civil Miscellaneous Appeal No.670 of 2005


Between:

The National Insurance Company Limited,
Represented by its Branch Manager,
Governorpet, Vijayawada.

                                                       .. Appellant

AND

Goddeti Annapoorna and 2 others

                                                   .. Respondents




JUDGMENT:

The award in MVOP.No.259 of 2000 dated 28-10-2004 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Krishna at Machilipatnam, directing the insurer of the offending vehicle to pay the compensation awarded to the wife and minor son of the deceased G. China Yesupadam in the first instance and recover the same from the owner of the vehicle led the insurer to file the present appeal.

When Goddeti China Yesupadam was travelling by lorry No.AP-16-W-8694 sitting on the load with the permission of the driver on 24-03-2000, he fell down from the lorry due to rash and negligent driving of the vehicle and he was declared dead when taken to Government Hospital, Jaggaiahpet with grievous injuries suffered due to the fall. Vatsavai Police registered Crime No.20 of 2000 against the lorry driver and the wife and minor son of China Yesupadam claimed a compensation of Rs.6,00,000/- from the owner and insurer of the lorry.

While the owner of the lorry remained ex parte before the Tribunal, the insurer specifically contended that among other things, no premium was paid in respect of carriage of passengers in the goods vehicle and any risk of such passengers is not covered by the terms and conditions of the insurance policy. The violation of the terms and conditions of the policy by carrying passengers absolves the insurer from any liability and hence, the insurer desired the claim to fail.

The Tribunal framed issues about the manner of the accident and the entitlement of the claimants to compensation.

The Tribunal examined PWs.1 and 2 and RWs.1 and 2 and marked Exs.A.1 to A.5, B.1, X.1 and X.2 during the enquiry.

The Tribunal rendered the impugned judgment accepting the evidence PW.2-an independent witness and the contents of Ex.A.1-First Information Report and Ex.A.2-Post Mortem certificate corroborating the claims of PW.1 to conclude that the accident occurred due to the rash and negligent driving of the lorry and assessed the compensation payable to the wife and minor son of the deceased on the basis of Ex.A.5-Salary Certificate,

deducted 1/3rd towards personal expenses of the deceased and applied a multiplier of 12.79 for the age of 40 years of the deceased. Apart from the loss of future dependency, the Tribunal also awarded Rs.15,000/- each towards loss of consortium and loss of estate and Rs.3,000/- towards funeral expenses and rounding off the compensation to Rs.4,45,000/-, the Tribunal directed the same to carry interest at 9% p.a. from the date of award and at 6% p.a. till the date of realization. The Tribunal relying on National Insurance Company Ltd., v. Baljit Kaur (2004 ACJ 428) directed the insurer to satisfy the award and recover the same from the owner without the necessity of filing any separate suit.

The insurer contends herein that apart from applying a higher multiplier, the terms and conditions of the insurance policy making the insurer not liable to pay any compensation in respect of gratuitous passengers were ignored. The gross salary but not the net salary was taken into account for assessing the compensation and the ratio laid down in National Insurance Company Ltd., v. Baljit Kaur (2004 ACJ 428) does not apply to the facts of the case. The insurer, therefore, desired the impugned award to be reversed.

Heard Sri N.S. Bhaskar Rao, learned standing counsel for the appellant and Sri G. Krishna Murthy, learned counsel for the

claimants and Sri P. Prabhakara Rao, learned counsel for the 3rd respondent-owner of the lorry.

Though a feeble attempt was made to question the quantum of compensation arrived at by the Tribunal, it is seen from the award that the net salary of the deceased alone was taken into consideration for assessing the loss of future dependency and

1/3rd was deducted towards his personal expenses. It is also seen that the multiplier adopted as per Bhagavan Das v. Mohd. Arif (1987 ACJ 1052) for the age of 40 years of the deceased is in fact much less than what has been fixed now by Sarla Verma

and others v. Delhi Transport Corporation and another[1]. Though the Tribunal awarded Rs.33,000/- in total towards loss of consortium, loss of estate and funeral expenses at a higher quantum than decided by Sarla Verma and others v. Delhi Transport Corporation and another (stated supra), as the compensation fixed towards loss of future dependency is lesser than what the claimants should have got, there is no need to interfere with the quantum of compensation at this distance of time or the grant of interest at 9% p.a. and 6% p.a. respectively for different periods, which is not shown to be in any way deviant from the then prevailing rate of interest.

The conclusion of the Tribunal about the rash and negligent driving of the lorry being the cause for the accident and the death of China Yesupadam also cannot be interfered with as the evidence of PWs.1 and 2 and Exs.A.1 and A.2 in this regard were not controverted by RWs.1 and 2 or any other evidence. The

ownership of the vehicle with the 1st respondent to the claim and

its subsisting insurance with the 2nd respondent to the claim are also not in dispute. The conclusion of the Tribunal that the deceased was an unauthorized passenger in respect of whom no premium was paid by the insured to the insurer has also become final in the absence of any challenge by the claimants or the owner. Hence, it is clear that the policy of insurance-Ex.B.1 does not cover the risk of the deceased China Yesupadam.

The only question that remains is the applicability of the principle of pay and recover on facts.

The Tribunal relied on the ratio in National Insurance Co.

Ltd., v. Baljit Kaur and others[2] wherein a Three Judge Bench of the Apex Court was of the opinion that interests of justice would be sub-served, if the insurer is directed to satisfy the award in favour of the claimant and recover the same from the owner of the vehicle for which purpose no separate suit need be filed.

However, in National Insurance Co. Ltd., v. Parvathneni

and another[3] a Two Judge Bench of the Apex Court referred to the earlier decisions from the Apex Court taking the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle and expressing some reservations about the correctness of the said decisions referred the matter to a Larger Bench. The reference does not appear to have been answered by a Larger Bench so far.

While so, the issue was considered by a learned judge of this Court in New India Assurance Company Limited,

Visakhapatnam v. Korukonda Appa Rao and another[4] wherein the learned Judge referred to National Insurance Co. Ltd., v. Baljit Kaur (1 (2004) ACC 259 (SC)) and directed the insurer to pay first and then recover from the owner for which purpose the learned Judge also referred to National Insurance Company Ltd., v. Anjana Shyam and others (2007 (5) ALD 89 (SC)) apart from Baljit Kaur (stated supra).

The question received exhaustive consideration from another learned Judge of this Court in New India Assurance Co.,

Ltd., Tirupathi v. G. Sampoorna and others[5] and the learned Judge, after referring to the different views expressed in various precedents in this regard, concluded that pending resolution of the issues by the Larger Bench of the Supreme Court, it would be reasonable to understand National Insurance Company Limited v. Swaran Singh and others (2004 (2) ALD 36 (SC) as leaving the discretion to the Tribunals and Courts to give appropriate directions depending upon the facts and circumstances of each case.

If judicial discretion is vested with the Tribunal to give appropriate directions in this regard notwithstanding the non- liability of the insurer under the policy to compensate the victim or his dependents, such jurisdiction cannot be considered to have been exercised wrongly in the present case when the deceased China Yesupadam working as Police Constable had an unnatural death at a comparatively young age of 40 years leaving a young widow aged 38 years and a minor son aged 14 years, who lost their only source of living and support. There was a subsisting insurance policy for the vehicle and the claim that the deceased was travelling on the load with the permission of the driver is not denied. If under the circumstances, the Tribunal had decided to apply the principle of National Insurance Co. Ltd., v. Baljit Kaur (1 (2004) ACC 259 (SC)), the exercise of such judicial discretion cannot be interfered with on the ground of any illegality or irregularity in this regard. Though it is true that the insurer had to pay a substantial sum with the chances of recovery from the owner being always open to question, the judicial discretion and jurisdiction vested in the Tribunal cannot be taken away or interfered with due to any such suspicions or doubts. The award, therefore, cannot be interfered with.

In the result, the Civil Miscellaneous Appeal is dismissed without costs.

_____________________ G. BHAVANI PRASAD, J Date: 20-10-2011 Ksn

[1] 2009 ACJ 1298 [2] 1 (2004) ACC 259 (SC) [3] (2009) 8 SCC 785 [4] 2010 (2) ALT 229 [5] 2010 (4) ALD 586