The National Insurance Co Ltd vs Smt.Sommenkar Bheem Bai 5 Ors
2023 Latest Caselaw 69 Tel

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

               M.A.C.M.A. No. 2148 of 2015

JUDGMENT:

This appeal is preferred by the National Insurance

Company Limited, questioning the order and decree, dated

07.01.2011 made in O.P.No.1104 of 2005 on the file of the

Motor Accidents Claims Tribunal (I Additional District

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

2. For the sake of convenience, hereinafter, the parties

are referred to as per their array before the tribunal.

3. The claimants filed a petition under Section 166 of

the Motor Vehicles Act claiming compensation of

Rs.4,00,000/- for the death of the deceased, Sonmenkar,

who died in a motor vehicle accident that occurred on

22.11.2004. According to the claimants, on the fateful day,

while the deceased was travelling on Tractor and Trailer

bearing No.AP 22 U 5412 and AP 22 U 5413, as a labourer

from Navipet to Savergaon with harvested

paddy plantations and when the tractor reached the limits

of Yamcha Village Shivar, the driver of the tractor drove the

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same in a rash and negligent manner, as a result the

deceased fell down from the tractor and sustained grievous

injuries as the tractor ran over him. Immediately, the

deceased was shifted to Government Hospital, Basar, and

while undergoing treatment, he succumbed to injuries.

Since the accident occurred due to negligence of the driver

of the Tractor & Trailer, owned by respondent No.1 and

insured with respondent No.2, the claimants filed the

claim-petition seeking compensation of Rs.4.00 lakhs

towards compensation under various heads.

4. Before the Tribunal, while the respondent No. 1,

owner of the offending vehicle, stood ex parte, the

respondent No. 2 contested the claim denying the

averments of the claim petition, including the age,

avocation and income of the deceased and contended that

the amount claimed is excessive and prayed to dismiss the

claim petition.

5. After considering the claim, counter and the

evidence, both oral and documentary brought on record,

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the tribunal has allowed the O.P. in part awarding a sum of

Rs.3,14,520/- towards compensation with interest at 7.5%

thereon to be paid by the respondent Nos.1 and 2 jointly

and severally. Hence, the insurance company filed the

present appeal challenging the quantum of compensation

as well as its liability to pay the compensation.

6. Heard both sides and perused the record.

7. Learned Standing Counsel appearing for the

appellant, insurance company has submitted that since

there are only two dependents of the deceased, the

Tribunal ought to have deducted 1/3rd towards personal

expenses of the deceased but not 1/5th. It is further

submitted that since the deceased was labourer and as no

premium was paid to cover the risk of the labourer, the

insurance company is not liable to pay the compensation

and at the most the Tribunal ought to have invoked the

doctrine of pay and recover.

MGP, J Macma_2148_2015

8. Learned counsel appearing for the claimants has

submitted that the Tribunal has awarded just

compensation. It is contended that in fact, the Tribunal

has not added the future prospects to the established

income of the deceased and had the future prospects were

added, the claimants would have got more compensation

than the one awarded by the Tribunal and therefore, even

though the tribunal has deducted 1/5th towards personal

expenses of the deceased, the quantum of compensation

need not be disturbed. As regards the liability, it is

contended that since the premium was collected for the

trailer towards third party risk, the Tribunal has rightly

fastened liability on the insurance company as well and

therefore, the impugned order needs no interference by this

Court.

9. With regard to the manner of the accident, P.W.2,

eyewitness to the accident, has specifically deposed that

due to the negligent driving of the tractor by its driver, the

deceased fell down from the tractor and sustained injuries

MGP, J Macma_2148_2015

on account of tractor running over him. Though he was

cross-examined at length, nothing contra to disbelieve his

evidence was elicited. Further, police after due

investigation, laid the charge sheet against the driver of the

tractor. Therefore, considering the evidence of P.W.2,

coupled with documentary evidence Exs.A.1 & A.2, the

tribunal has rightly held that the accident took place only

due to the rash and negligent driving of the tractor by its

driver, which needs no interference by this Court.

10. As regards the quantum of compensation, as rightly

pointed out by the learned Standing Counsel, as there are

two dependents, the Tribunal ought to have deducted 1/3rd

towards personal deducting but not 1/5th. However,

considering the decision of the decision of the Apex Court

in National Insurance Company Limited Vs. Pranay

Sethi and others1, if future prospects at 25% was added

to the assessed income of the deceased, the claimants

would have got more compensation than the one awarded

2017 ACJ 2700

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by the Tribunal. Such being the case, this Court is not

inclined to interfere with the quantum of compensation

awarded by the Tribunal.

11. Insofar as the liability is concerned, as seen from

Ex.B1, premium was paid only in respect of third party but

not covering the risk of labourer. Even as per the contents

of the O.P., the deceased was proceeding on trailer as

labourer at the time of the accident. Therefore, the

deceased cannot be treated as third party but he can be

treated as gratuitous passenger. In Anu Bhanvara v. Iffco

Tokio General Insurance Company Limited2, the Hon'ble

Supreme Court dealt with the similar issue by referring its

earlier judgments in National Insurance Co. Ltd. V. Baljit

Kaur3 and Manuara Khatun and others v. Rajesh

Kumar and others4 apart from other judgments, invoked

the principle of 'pay and recover', in the peculiar facts and

circumstances of the case. In the facts and circumstances

of the case, since there was violation of policy conditions by

Laws (SC) 2019 840

2004 ACJ 428

(2017) 4 SCC 796

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the respondent No. 1, this court is inclined to apply the

doctrine of pay and recover.

12. Accordingly, the M.A.C.M.A. is allowed in part

confirming the compensation awarded by the Tribunal.

However, following the doctrine 'pay and recover', the

Insurance Company-appellant is directed to pay the

compensation amount to the claimants, at the first

instance and thereafter recover the same from the owner of

the offending vehicle without initiating any separate

proceedings. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________________ JUSTICE M.G.PRIYADARSINI 05.01.2023 Tsr

MGP, J Macma_2148_2015

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

M.A.C.M.A. No. 2148 of 2015

DATe: 05-01-2023