Royal Sundaram Alliance ... vs Shaik Mustaq Another
2022 Latest Caselaw 5743 Tel

     THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

                    M.A.C.M.A. No.469 of 2015

JUDGMENT:

This appeal is preferred by Royal Sundaran Alliance

Insurance Company Limited, questioning the order and decree,

dated 19.11.2012 passed in M.A.T.O.P.No.569 of 2011 on the

file of the Motor Accident Claims Tribunal-cum-V Additional

District Judge (Fast Track Court) at Kothagudem (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 06.03.2010. It

is stated that on 06.03.2010 while the claimant was proceeding

on a motorcycle, along with his brother, at about 21:30 hours,

when they reached near Burgudem Village, the crime vehicle

i.e., Tipper bearing No. AP 20W 6408, owned by respondent No.

1 and insured with respondent No. 2, appellant herein, being

driven by its driver in a rash and negligent manner at high

MGP, J Macma_469_2015

speed, dashed against the motorcycle, as a result of which, the

claimant sustained multiple injuries. Therefore, he laid the

claim against the respondents seeking compensation of

Rs.5,00,000/- under various heads.

4. Considering the claim and the counter filed by the

respondent No. 2, insurance company, and on evaluation of the

evidence, both oral and documentary, the learned Tribunal has

allowed the O.P. and awarded compensation of Rs.5,80,850/-

with interest at 7.5% per annum. However, for the violation of

terms and conditions of the policy, the respondent No. 2 was

directed to first pay the compensation and then recover the

same from the respondent No. 1. Challenging the same, the

present appeal has been filed by the insurance company.

5. Heard both sides and perused the record.

6. A perusal of the impugned judgment discloses that the

Tribunal has framed issue No.1 as to whether the accident had

occurred due to rash and negligent driving of the vehicle by its

driver, and after considering the evidence of P.W.1 coupled with

the documentary evidence i.e., Ex.A1, First Information Report

and Ex.A2, charge sheet, the tribunal has categorically observed

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that the accident has occurred due to the rash and negligent

driving of the crime Tipper by its driver and has answered the

issue in favour of the claimant and against the respondents.

Therefore, I see no reason to interfere with the finding of the

Tribunal that the accident occurred due to the rash and

negligent driving of the Tipper by its driver.

7. The main contention of the learned Standing Counsel for

the appellant is that the driver of the offending vehicle was not

having valid driving licence at the time of the accident, which

has been proved by the evidence of R.W.2, and as there was

breach of terms and conditions of the Policy, the Insurance

Company is not liable to pay the compensation. It is no-doubt

true that by examining R.Ws.1 and 2, the appellant-insurance

company has sufficiently established the fact that the driver of

the offending vehicle was not holding valid driving licence and

there was breach of terms and conditions of the policy. But the

fact remains that by the time of accident, the offending vehicle

was insured with the appellant and Ex.B.1 policy was very

much in force. In the case of third party risks, as per the

decision in National Insurance Company Ltd. V. Swaran

MGP, J Macma_469_2015

Singh and others1, the insurer had to indemnify the

compensation amount payable to the third party and the

insurance company may recover the same from the insured. In

the said decision, the Apex Court considered the doctrine of

"pay and recover" examined the liability of the insurance

company in cases of breach of policy condition due to

disqualifications of the driver or invalid driving license of the

driver and held that in case of third party risks, the insurer has

to indemnify the compensation amount to the third party and

the insurance company may recover the same from the insured.

Recently, the Apex Court in the case of Shamanna v. The

Divisional Manager, the Oriental Insurance Company

Limited and Others2, following its earlier decision in Swaran

Singh (6 supra), reiterated that "even if the driver does not

possess any driving license, still the insurer is liable to pay the

compensation and that he can recover the award amount from

the owner of the offending vehicle after paying the amount." In

view of the above, the tribunal was right in directing the

appellant to pay the compensation amount at the first instance

(2004) 3 SCC 297

2018 ACJ 2163

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

said findings needs no interference by this Court.

8. Insofar as the quantum of compensation is concerned, a

perusal of the medical record i.e., Ex.A.3, Medical Certificate,

reveals that the claimant had sustained the following injuries:-

(i) Fracture of left leg amputated upto below knee level;

(ii) Fracture of 2 to 7 ribs on right chest;

(iii) Injury on the left eye;

(iv) Injury on right temporal bone; and

(v) Simple injuries all over the body.

Further, the disability certificate issued by the Medical Board,

Khamma, marked as Ex.A.7, discloses that the claimant

sustained 70% disability on account of amputation of left leg

below knee level. Coming to the income of the claimant,

although he had claimed that he was earning Rs.10,000/- per

month by doing chicken business, as he had not substantiated

the same by cogent evidence, the tribunal has rightly assessed

his monthly income at Rs.4,000/- which cannot be said to be on

higher side. Therefore, taking into consideration all the aspects

i.e., 70% disability sustained by the claimant, nature of

treatment undergone by him, medical expenses, extra

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nourishment and pain and suffering, the Tribunal has rightly

awarded an amount of Rs.5,80,850/- with interest @ 7.5% per

annum. Therefore, I see no reason to interfere with the award

passed by the Tribunal and the appeal is liable to be dismissed.

9. Accordingly, the M.A.C.M.A. is dismissed confirming the

award and decree passed by the Tribunal. There shall be no

order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________________ JUSTICE M.G. PRIYADARSINI 10.11.2022 tsr

MGP, J Macma_469_2015

THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.469 of 2015

DATE: 10-11-2022