The Oriental Insurance Company ... vs S. Ashok Reddy, Hyd 5 Others
2023 Latest Caselaw 1173 Tel

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

                    M.A.C.M.A.No.515 of 2017

JUDGMENT:

This appeal is preferred by the Oriental Insurance

Company Limited, questioning the order and decree, dated

31.10.2016 made in M.V.O.P.No.409 of 2012 on the file of

the Chairman, Motor Accidents Claims Tribunal-cum-XIV

Additional Chief Judge (Fast Track Court), City Civil

Courts, Hyderabad (for short, "the Tribunal").

2. For the sake of convenience, the parties will

hereinafter be referred to as arrayed before the Tribunal.

3. Brief facts of the case are that the claimants filed a

petition under Section 166 of the Motor Vehicles Act, 1988

claiming compensation of Rs.65,00,000/- for the death of

one S.Hema Latha (hereinafter referred to as "the

deceased"), who died in a motor vehicle accident.

According to the claimants, on 11.10.2011 while the

deceased and her relative Smt. Naga Jyothi were

proceeding on Hero Honda Activa bearing No.AP 13 S 5475

from Mehdipatnam towards her residence, at about 3:30

p.m., when they reached near Mehraj Cross Road, one

MGP, J Macma_515 of 2017

School Bus bearing No.AP 12 V 0569, owned by

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

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

speed and dashed the Hero Honda Activa of the deceased

from back side, as a result, the deceased and her relative

were fell down on the road and sustained grievous injuries.

Immediately after the accident, the deceased was shifted to

Care Hospital, Banjara Hills, Hyderabad, where she

succumbed to injuries while undergoing treatment. On a

complaint, a case in Crime No.264 of 2011 has been

registered against the driver of the offending vehicle.

According to the claimants, the deceased was hale and

healthy prior to the accident and she was running

business under the name and style of M/s. New Sri Sai

Stores and also doing L.I.C. business and earning

Rs.50,000/- per month. It is the further case of the

claimants that due to sudden demise of the deceased, the

claimants lost their source of income and also love and

affection. Therefore, the claimants laid a claim against the

respondents, seeking compensation of Rs.65,00,000/-

under various heads.

MGP, J Macma_515 of 2017

4. Before the Tribunal, respondent No.1 remained

ex parte. Respondent No.2 filed counter denying the

averments made in the claim-petition including the age,

income and avocation of the deceased. It is also stated

that the accident occurred due to the negligence of the

deceased and that there was no negligence on the part of

the driver of the school bus and that the accident occurred

only due to the negligence of the deceased. It is further

stated that the driver of the School Bus was not having

valid driving licence at the time of the accident and

therefore, the insurance company 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. Based on the above pleadings, the following issues

are framed before the Tribunal:-

1) Whether the deceased died in the accident on 11.10.2011 due to rash and negligent driving of the driver of School Bus bearing No.AP 12 V 0569?

MGP, J Macma_515 of 2017

2) Whether the petitioners are entitled to the compensation? If so, to what amount and from whom?

3) To what relief?

6. During trial, on behalf of the claimants, P.Ws.1 to 3

were examined and Exs.P1 to P18 and Exs.X1 and X2 were

marked. On behalf of the respondents R.W.1 was

examined and Exs.B1 to B3 were 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 School Bus and awarded total compensation

of Rs.38,10,500/- together with interest @ 7.5% per

annum. Aggrieved by the said order, the appellant-

Insurance Company filed the present appeal.

8. Heard both sides and perused the material available

on record.

9. A perusal of the order reveals that the Tribunal

passed a well considered order by taking into consideration

all the aspects. The Tribunal has framed the Issue No.1 as

to whether the accident had occurred due to rash and

MGP, J Macma_515 of 2017

negligent driving of the driver of the School Bus bearing

No.AP 12 V 0569, to which the Tribunal has categorically

observed that the accident has occurred due to the rash

and negligent driving of the driver of the School Bus and

has answered in favour of the claimants and against the

respondents. Therefore, I see no reason to interfere with

the said finding.

10. Insofar as the quantum of compensation is

concerned, after considering the oral evidence of P.W.1

coupled with Exs.P16 to P18, income tax returns, the

Tribunal has rightly taken the income of the deceased at

Rs.25,000/- per annum and after adding the future

prospects; after deducting 1/4th amount and applying

multiplier at '14' the Tribunal has awarded Rs.38,10,500/-

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

compensation awarded by the Tribunal.

11. As regards the liability is concerned, admittedly, as

seen from the record, the driving licence of the offending

vehicle was not renewed and therefore, there is breach of

terms and conditions of the Insurance Policy as rightly

MGP, J Macma_515 of 2017

contended by the learned Standing Counsel for the

Insurance company. But the fact remains that by the time

of accident, the offending vehicle was insured with

respondent No.2 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 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

(2004) 3 SCC 297

MGP, J Macma_515 of 2017

Others2, 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 amount

from the owner of the offending vehicle after paying the

amount." In view of the above, the Tribunal has rightly

directed respondent No.2 to pay the compensation amount

at the first instance and then recover the same from the

owner of the vehicle i.e., respondent No.2.

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

the order and decree, dated 31.10.2016 made in

M.V.O.P.No.409 of 2012 on the file of the Chairman, Motor

Accidents Claims Tribunal-cum-XIV Additional Chief Judge

(Fast Track Court), City Civil Courts, Hyderabad. There

shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________________ JUSTICE M.G. PRIYADARSINI 13.03.2023 gkv

2018 ACJ 2163

MGP, J Macma_515 of 2017

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

M.A.C.M.A. No.515 of 2017

DATE: 13.03.2023

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