Telangana High Court
Parshara Shridhar Bhattar vs S.Ramesh on 28 June, 2022
Bench: G Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A.No.2056 of 2014
JUDGMENT:
This appeal is preferred by the appellant-claimant,
questioning the order and decree, dated 14.08.2013 passed in
M.A.T.O.P.No.326 of 2006 on the file of the Motor Accidents
Claims Tribunal-I Additional District Judge, Khammam (for
short, the Tribunal).
2. For the sake of convenience, the parties have been
referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a
petition under Section 166 of the Motor Vehicles Act claiming
compensation of Rs.5,00,000/- for the injuries sustained by him
in a motor vehicle accident that occurred on 26.12.2005. It is
stated that on that day the claimant boarded auto bearing
No.AP 20 W 2612 at Nayakangudem in order to go to Khammam
and when the said auto reached near Devuni Thanda, the driver
of the said auto drove it in a rash and negligent manner at high
speed and to avoid an accident against the lorry which was
coming in opposite direction, he came to the edge of the road,
GSD, J
Macma_2056_2014
thereby the auto turned turtle and the claimant and other
inmates of the auto sustained injuries. The 1st respondent is the
owner and the 2nd respondent is the insurer of the aforesaid
auto, are jointly and severally liable to pay the compensation.
4. Before the Tribunal, though the 1st respondent appeared
through his Counsel but no counter has been filed. The 2nd
respondent filed counter denying the averments made in the
claim-petition including the manner in which the accident took
place, nature of injuries suffered and nature of treatment taken
by the claimant. It is also contended that the auto was
overloaded with passengers as such the 2nd respondent is not
liable to pay the compensation and also stated that the amount
claimed is excessive and prayed to dismiss the claim petition.
5. Basing on the above pleadings, the following issues are
framed before the Tribunal:-
1) Whether the accident took place on account of rash
and negligent driving by the driver of auto bearing
No.AP 20 W 2612?
2) Whether the driver of auto was holding proper driving
licence?
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Macma_2056_2014
3) Whether R-1 committed breach of any policy
conditions?
4) Whether the petitioner is entitled to any
compensation, if so, to what extent and against
whom?
5) To what relief?
6. During trial, on behalf of the claimant, P.Ws.1 and 2 were
examined and Exs.A1 to A9 and Exs.C1 and C2 were marked. On
behalf of the respondents, R.W.1 was examined and Ex.B1 was
marked.
7. After considering the oral and documentary evidence on
record, the Tribunal came to the conclusion that the accident
occurred due to the rash and negligent driving of driver of the
Auto and awarded total compensation of Rs.2,42,038/- together
with interest @ 7.5% per annum payable the 1st respondent only
while dismissing the claim against the Insurance Company as
there is breach of policy conditions. Challenging the said
finding, the claimant filed the present appeal.
GSD, J
Macma_2056_2014
8. Learned Counsel for the claimant would submit that the
Tribunal erred in exonerating the Insurance Company from its
liability.
9. Learned Standing Counsel for the Insurance Company is
that the Tribunal has rightly exonerated the insurance company
as there is a breach of policy conditions and the same warrants
no interference.
10. Admittedly as per the charge sheet five persons including
the driver were traveling in the auto at the time of accident.
The seating capacity of the offending vehicle was four in all. It
is well settled law that even if, passenger vehicle is overloaded,
the Insurance Company is not totally absolved of its liability to
indemnify the owner. In United India Insurance Co. Ltd. v.
K.M. Poonam and others1, and National Insurance Co. Ltd. v.
Tulna Devi and others2, though the vehicle was carrying
passengers in excess of the number of passengers permitted,
which was beyond the terms of the contract, the Supreme Court
2011 ACJ 917
2009 ACJ 581
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Macma_2056_2014
had applied the principle of pay and recover. Therefore, in the
light of the judgments of the Apex Court referred to above, the
Insurance Company is directed to pay the compensation amount
at the first instance and then recover the same from the owner
of the vehicle.
11. Accordingly, the M.A.C.M.A. is allowed and following the
doctrine 'pay and recover', the 2nd respondent-Insurance
Company is directed to pay the compensation amount awarded
by the Tribunal together with accrued interest thereon to the
appellant-claimant, at the first instance and thereafter recover
the same from the owner of the offending vehicle i.e., the 1st
respondent without initiating any separate proceedings. There
shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________
JUSTICE G. SRI DEVI
28.06.2022
gkv
