Guguloth Ramulu, Nizamabad 2 ... vs Vijaya Kumar, Nizamabad Dist Anr
2022 Latest Caselaw 3789 Tel

Citation : 2022 Latest Caselaw 3789 Tel
Judgement Date : 20 July, 2022

Telangana High Court

Guguloth Ramulu, Nizamabad 2 ... vs Vijaya Kumar, Nizamabad Dist Anr on 20 July, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                    M.A.C.M.A.No.1882 of 2015
JUDGMENT :

This appeal is filed by the claimants being aggrieved by the

order and decree dated 13.05.2015 in M.V.O.P.No.752 of 2010 on

the file of Motor Accident Claims Tribunal-cum-Principal District

Judge, Nizamabad, for the death of Guguloth Mahesh Kumar. The

O.P. was filed claiming compensation of Rs.8,00,000/- together

with interest and costs.

2. For the sake of convenience, the parties are referred to as

arrayed in the O.P.

3. The Tribunal, on examining the oral and documentary

evidence on record, allowed the O.P., awarding a total

compensation of Rs.8,00,000/- along with costs and interest

@7.5% per annum from the date of petition till the date of

realization, payable by the 1st respondent i.e. the owner of the lorry

by exonerating the Insurance Company i.e. 2nd respondent.

4. Heard both sides and perused the record.

GAC, J MACMA.No.1882 of 2015

5. The learned Counsel for the appellants/Claimants contended

that the Tribunal erred in directing the 1st respondent alone to pay

the compensation though Ex.A-12 is in force as on the date of the

accident with a finding that the deceased was a gratuitous

passenger and there is no valid driving licence to the driver of the

vehicle, and as such, the Insurance Company is not liable to

indemnify the owner.

6. The point involved in this appeal is whether the Insurance

Company i.e. the 2nd respondent can be exonerated from the

liability though Ex.A-12/the insurance policy was in force as on the

date of the accident. There is no dispute as to the quantum of

compensation awarded by the Tribunal. Therefore, this Court is

not going into the merits as to the compensation granted by the

Tribunal.

7. The record of the Tribunal in MVOP.No.752 of 2010 clearly

disclose that RW-2 was the driver of the crime vehicle at the time

of the accident. Ex.A-12 and Ex.B-1 are one and the same i.e.

copies of the insurance policy filed before the Tribunal by both the

GAC, J MACMA.No.1882 of 2015

parties. The only finding of the Tribunal is that as the driver of the

vehicle was not holding valid driving licence at the time of the

accident though the Insurance Policy was in force, the Insurance

Company is not liable to pay the compensation to the third parties.

8. In support of his contention, the learned counsel for the

appellants has relied on the judgment of Hon'ble Supreme Court in

Anu Bhanvara v. Iffco Tokio General Insurance Co. Ltd. &

others1, wherein, their Lordships have held as under:

"10. Per contra, learned counsel for the respondent- insurance company has contended that since the claimants were gratuitous passengers in a goods vehicle, in which case the liability for payment of compensation for death or body injury to the passengers of such goods vehicle would not be covered, hence the principle of pay and recover would not apply. It has thus been contended that the order of the High Court is perfectly justified in law and calls for no interference by this Court. In support of her submission, learned counsel has relied on following decisions, namely, New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223; National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1; National Insurance Co. Ltd.

v. Kaushalya Devi (2008) 8 SCC 246; National Insurance

AIR 2019 SC 3934

GAC, J MACMA.No.1882 of 2015

Co. Ltd. v. Rattani (2009) 2 SCC 75; National Insurance Co. Ltd. v. Prema Devi (2008) 5 SCC 403; Bharat AXA General Insurance Co. Ltd. v. Adani MANU/TN/6503/2018; Bajaj Allianz General Insurance Co. Ltd. v. Lal Singh (2015) SCC Online Del 7508.

11. We have heard learned counsel for the parties and perused the record as well as the various decisions cited by learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case.

Accordingly, these appeals are disposed of with the direction that the respondent No.1-Insurance Company shall be liable to pay the awarded compensation to all the claimants in both the appeals. However, the respondent No.1-Insurance Company shall have the right to realize the amount of compensation from the 2nd respondent and 3rd respondent (driver and owner of the vehicle) in accordance with law."

GAC, J MACMA.No.1882 of 2015

9. The learned counsel for appellants has also relied on the

decision reported in Parminder Singh v. New India Assurance

Co. Ltd. & others2, wherein, their Lordships have held that if the

driver of the offending vehicle does not possess a valid driving

licence, the principle of 'pay and recover' can be ordered to direct

the insurance Company to pay the victim, and then recover the

amount from the owner of the offending vehicle.

10. The propositions laid in the above two decisions of the

Hon'ble Apex Court are squarely applicable to the facts and

circumstances of the present case. Admittedly, the deceased is a

gratuitous passenger in the lorry of the 1st respondent, which is