M/S Hdfc Ergo General Insurance ... vs G. Anjaneyulu And 2 Others
2022 Latest Caselaw 6180 Tel

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

                    M.A.C.M.A. No. 3388 of 2019


JUDGMENT:

M/s. HDFC ERGO General Insurance Company Limited,

respondent No. 2 before the Tribunal, preferred this appeal

challenging the order and decree, dated 28.06.2019, passed in

M.V.O.P. No. 233 of 2017 on the file of the Motor Accident Claims

Tribunal-cum-IX Additional Chief Judge, City Civil Court at

Hyderabad. For the sake of convenience, hereinafter, the parties will

be referred to as per their array before the tribunal.

The claimant, respondent No. 1 herein, filed the O.P. claiming

compensation of Rs.15,00,000/- for the injuries suffered by him in

the motor accident that took place on 23.12.2016. According to the

claimant, on 23.12.2016, at about 7:00 p.m., while he was returning

home on his motorcycle, when he crossed NH-65 in front of Saki

Tank from market Kaman side, the offending vehicle i.e., lorry

bearing No. AP 29 TC 0708, owned by respondent No. 1, insured

with respondent No. 2, being driven by respondent No. 3 in a rash

and negligent manner, dashed the motorcycle, as a result of which,

he fell down and received injuries. He was treated as inpatient at

Yashoda Hospital, underwent major surgery and his left foot below

knee level was amputated. He had incurred an amount of

Rs.2,50,000/- towards medical expenditure and due to the

amputation, he suffered permanent disability. Therefore, he laid the

claim against the respondents under various heads.

Before the tribunal, while the respondent Nos. 1 & 3 remained

ex parte, the respondent No. 2 contested the claim petition by filing

counter denying the manner in which the accident took place, the

income of the claimant and the compensation claimed being

excessive. Considering the claim and the counter filed by the

Insurance Company and on evaluation of the evidence, both oral and

documentary, the learned Tribunal has allowed the O.P. in part

awarding total compensation of Rs.14,43,000/- with 9% interest per

annum, holding the owner of the offending vehicle, driver and the

insurance company jointly and severally liable to pay the

compensation.

Heard the learned Standing Counsel for the appellant and the

learned counsel for the claimant-respondent No. 1 herein. Perused

the material available on record.

Now, the main contention of the learned Standing Counsel for

the appellant is that the appellant-Insurance Company is not liable

to pay any compensation inasmuch as the driver of the offending

vehicle was possessing only light motor vehicle license i.e., LMV (NT),

but he was driving heavy goods vehicle at the relevant time of

accident. Thus, as there was breach of terms and conditions of the

insurance policy, the learned Tribunal ought not to have fastened

liability on the Insurance Company. It is further contended that in

the circumstances of the case, the learned Tribunal ought to have

directed the Insurance Company to pay the compensation in the first

instance and granted liberty to recover the same from the owner of

the offending vehicle, for the breach of terms and conditions of the

policy. As regards the quantum of compensation, it is contended

that the tribunal ought not to have fixed the disability at 60% as was

claimed by the claimant and that the amount of compensation

awarded is excessive and exorbitant.

On the other hand, learned counsel appearing for respondent

No. 1-claimant, contended that the compensation awarded by the

learned Tribunal is just and reasonable and needs no interference by

this Court. Even on the point of liability, it is contended that

considering the circumstances of the case, the tribunal has rightly

fixed the liability on all the respondents jointly and severally

inasmuch as Ex.B. 1 policy was in force as on the date of accident.

The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is not

challenged by either of the respondents.

As regards the quantum of compensation, the medical

evidence discloses that the claimant suffered grievous crush injury of

left foot following A/H/OR.T.A., extensive loss of soft tissue;

dislocation of multiple bones of foot, ankle and vascular injury of left

foot. He was treated at Yashoda Hospital as inpatient from

24.12.2016 to 28.12.2016 where, his left leg below the knee level was

amputated. Ex.A.6 to A.8 are the medical bills which disclose that

the claimant had spent a sum of Rs.1,82,427/- which is

substantiated by the evidence of P.W.3, the Billing Manager of

Yashoda Hospital. P.W.2, the Orthopedic Surgeon in Yashoda

Hospital, P.W.4, Orthopedic Surgeon, who is one of the members of

the Medical Board, stated that the claimant had sustained 60%

permanent disability and Ex.A.10 is the disability certificate issued

to that effect. Ex.A.11 is the salary certificate, which reflects that the

claimant was working as Machine Operator and was being paid

salary of Rs.10,140/- per month which is also substantiated by the

evidence of P.W.5, employer. In these circumstances, the amount of

Rs.14,43,000/- awarded by the tribunal towards compensation

under various heads, cannot be said to be excessive, more

particularly, when the claimant had sustained 60% permanent

disability on account of amputation of left leg below knee level.

Therefore, this Court is not inclined to interfere with the quantum of

compensation awarded by the tribunal. As regards the interest, the

tribunal has awarded interest at the rate of 9% per annum, which is

exorbitant. Following the decision of the Apex Court in Rajesh and

others v. Rajbir Singh and others1, the claimant is entitled to

interest @ 7.5% per annum on the compensation awarded by the

Tribunal from the date of petition till realization. Hence, the interest

granted by the Tribunal @ 9% per annum is reduced to 7.5% per

annum on the awarded amount of Rs.14,43,000/- from the date of

petition till the date of realization.

Coming to the aspect of liability, admittedly, the crime vehicle

is a heavy goods vehicle. In this regard R.W.2, the official of RTA was

examined on behalf of the insurance company, who categorically

deposed that to drive the offending vehicle, the driver must possess

heavy transport vehicle licence. However, as seen from Ex.B.2, the

extract of driving licence of respondent No. 3, driver, the driving

licence possessed by him stood lapsed by 11.02.2016 and whereas

the accident occurred on 23.12.2016 and even that licence possessed

by him was not to drive heavy goods vehicle such as crime vehicle.

Thus, the insurance company with clinching evidence has

established that there was violation of conditions of Ex.B. 1 policy by

the owner of the offending vehicle. Thus, as there was breach of

terms and conditions of the insurance policy, the learned Tribunal

ought not to have fastened liability on the Insurance Company. But

the fact remains that Ex.B. 1 policy was in force as on the date of the

accident. In the circumstances of the case, the learned Tribunal

1 2013 ACJ 1403 = 2013 (4) ALT 35

ought to have directed the Insurance Company to pay the

compensation in the first instance and granted liberty to recover the

same from the owner of the offending vehicle, for the breach of terms

and conditions of the policy by invoking the doctrine of pay and

recover. Therefore, the finding of the learned Tribunal in fixing the

liability jointly and severally upon the insurance company is liable to

be set aside. In the case of third party risks, as per the decision in

National Insurance Company Ltd. v. Swaran Singh and others2,

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 case of Shamanna v. The Divisional

Manager, the Oriental Insurance Company Limited and Others3,

following its earlier decision in Swaran Singh (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

(2004) 3 SCC 297

2018 ACJ 2163

amount from the owner of the offending vehicle after paying the

amount.

Accordingly, while maintaining the quantum of compensation

awarded by the tribunal, the interest is hereby reduced to 7.5% from

9% per annum on the compensation amount. The finding of the

learned Tribunal to the extent of fixing the liability jointly and

severally upon the insurance company is hereby set aside. However,

following the doctrine 'pay and recover', the Insurance Company is

directed to pay the enhanced compensation amount to the claimant

in the first instance and thereafter recover the same from the owner

of the offending vehicle, respondent No. 1 without initiating any

separate proceedings.

The appeal is allowed in part as indicated above. There shall

be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

____________________________ JUSTICE M.G.PRIYADARSINI

28.11.2022 tsr

THE HON'BLE JUSTICE G. SRI DEVI

M.A.C.M.A. No. 3388 of 2019

DATE: 28-11-2022