Aili Sailu Bangaru Chinna Sailu, ... vs Anjaiah, Nizamabad Dist Anr
2022 Latest Caselaw 6182 Tel

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

                 M.A.C.M.A. No.3169 of 2014

JUDGMENT:

This appeal is filed by the appellant-claimant aggrieved by

the order and decree, dated 15.05.2014 made in O.P.No. 372 of

2010 on the file of the Motor Accidents Claims Tribunal (District

Judge) at Nizamabad (for short, the Tribunal).

2. For the sake of convenience, the parties hereinafter

referred to as arrayed before the Tribunal.

3. The brief facts of the case are that on 21.11.2009 at about

1730 hours, while the claimant, along with his friend, Sakali

Gangadas, was proceeding on Splendor motorcycle towards

Nizamabad side, when they reached near Borgam Village, the

offending vehicle i.e., Tipper bearing No. AP 13X 3196, owned by

respondent No. 1, insured with respondent No. 2, being driven

by its driver in a rash and negligent manner at high speed,

dashed the claimant, due to which he fell down and sustained

multiple injuries all over the body. He had taken treatment at

various hospitals from 01.11.2009 to 23.01.2009 by spending

huge amounts. Therefore, he laid the claim for Rs.2.00 lakhs

towards compensation against the respondents herein.

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4. Before the Tribunal, the respondent No.1 filed his counter

denying the manner of accident, injuries allegedly sustained by

the claimant, treatment taken and also his income. The 2nd

respondent filed its counter denying the averments of the claim

petition and also contended that the accident occurred only due

to the gross negligence on the part of the claim petitioner. It is

further contended that the driver of the offending vehicle was

not having valid driving licence at the time of accident, thereby

the 1st respondent has violated the terms and conditions of the

policy, as such, the 2nd respondent is not liable to pay the

compensation. It is also contended that the amount claimed is

excessive and prayed to dismiss the claim petition.

5. 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

offending vehicle and awarded total compensation of

Rs.80,000/- with interest @ 7.5% per annum payable the 1st

respondent only while dismissing the claim against the 2nd

respondent-Insurance company as there is breach of policy

conditions. Dissatisfied with the quantum of compensation and

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also exonerating the 2nd respondent from its liability, the

claimant filed the present appeal, seeking enhancement of the

same.

6. Heard both sides and perused the record.

7. 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 offending

vehicle by its driver, and after considering the evidence of P.W.1

coupled with the documentary evidence, it has categorically

observed that the accident occurred due to the rash and

negligent driving of the offending vehicle 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 offending vehicle by its driver.

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

evidence of P.W.2, doctor, is to the effect that the claimant had

suffered fracture to the right ulna of the forearm and he was

treated in their hospital, Sai Tirumala Hospital, Nizamabad from

MGP, J Macma_3169_2014

21.11.2009 to 23.11.2009 apart from follow up treatment.

Moreover, a perusal of Ex.A.3, injury certificate, discloses that

the claimant had suffered fracture of skull, fracture of lower

ulna shaft and distal radius and grievous injury on chest and

fracture of left wrist and right hand. In these circumstances,

although the tribunal has rightly awarded Rs.50,000/- towards

injury, pain and suffering; Rs.15,000/- towards medical

expenses, the amounts granted under the heads of extra

nourishment at Rs.3,000/- and Rs.12,000/- towards loss of

earnings are meagre and need interference of this Court.

Considering the nature of injuries, period of treatment, the

amount of Rs.3,000/- awarded under the head of extra

nourishment is hereby enhanced to Rs.15,000/- under the

heads of extra nourishment, transport expenses and attendant

charges. So also, the amount of Rs.12,000/- awarded by the

tribunal under the head of loss of earnings is hereby enhanced

to Rs.15,000/-. Thus, in all, the claimant is entitled for the

total compensation of Rs.95,000/-.

9. Coming to the aspect of liability of payment of

compensation, admittedly, the crime vehicle is a heavy goods

vehicle as seen from Ex.A.11. The evidence of R.W.2, employee

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of R.T.A. Office is to the effect that the driver of the offending

vehicle was holding driving licence to drive only a transport

vehicle and he was not holding licence to drive heavy goods

vehicle such as the offending vehicle. Hence, there is clear

violation of terms and conditions of Ex.B. 1 policy by the owner

of the vehicle, respondent No. 1 as rightly held by the Tribunal.

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

vehicle was insured with the 2nd respondent and Ex.B.1 policy

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

decision in National Insurance Company Ltd. V. Swaran

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.

(2004) 3 SCC 297

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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 (1 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 Insurance Company is directed to pay the

compensation amount at the first instance and then recover the

same from the owner of the vehicle i.e., respondent No. 1 herein.

10. Accordingly, the M.A.C.M.A. is partly allowed by

enhancing the compensation amount awarded by the Tribunal

from Rs.80,000/- to Rs.95,000/-. The enhanced amount shall

carry interest @ 7.5% per annum from the date of passing of the

order till the date of realisation. However, following the doctrine

'pay and recover', the 2nd respondent-Insurance Company is

directed to pay the compensation amount 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. The amount shall

2018 ACJ 2163

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be deposited within one month from the date of receipt of a copy

of this order. There shall be no order as to costs.

Miscellaneous petitions, if any pending in this appeal,

shall stand closed.

______________________________ JUSTICE M.G. PRIYADARSINI 28.11.2022 tsr

MGP, J Macma_3169_2014

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

M.A.C.M.A. No.3169 of 2014

DATE: 28-11-2022