Telangana High Court

United India Insurance Co Ltd vs Danddugula Laxmaiah And 2 Ors on 20 November, 2023

Bench: Namavarapu Rajeshwar Rao

                               1


 THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                   M.A.C.M.A.No.3565 OF 2011

JUDGMENT:

This MACMA is filed by the appellant/Insurance

Company under Section 173 of the Motor Vehicles Act, 1988,

aggrieved by the order and decree dated 22.03.2011 passed in

O.P.No.9 of 2008 by the Chairman, Motor Accident Claims

Tribunal-cum-V Additional District Judge, Nalgonda at

Miryalguda (for short "the Tribunal").

2. For convenience, the parties will be hereinafter

referred to as they are arrayed before the Tribunal.

3. Brief facts of the case are that on 27.02.2007 at

about 6.00 p.m., one Krishna (hereinafter referred to as "the

deceased") was taken by the 1st respondent for unloading

gravel (kankara) at Margadarsi School near Nakrekal in his

Tractor and trailer bearing No.AP-24-J-5192 and AP-24-J-

5193, and after unloading the said gravel at Margadarsi

School, while the said Tractor was proceeding to Nakrekal for

the purpose of diesel, the driver of the said Tractor drove the

said Tractor in a rash and negligent manner at high speed and

in the said process, he could not control the vehicle and

dashed to another Tractor coming in the opposite direction. As

a result, the deceased fell from the said Tractor and the said

Tractor ran over the deceased, and thereby, he succumbed to

injuries. The Police Nakrekal registered a case in Cr.No.41 of

2007 for the offences punishable under Sections 304-A IPC

and 181 and 187 of M.V.Act. Before the accident, the deceased

was hale and healthy, and he was doing stone-cutting work

and used to earn Rs.4,500/- per month. Therefore, the

petitioners, who are the parents of the deceased, filed the O.P.

seeking compensation of Rs.3,00,000/-

4. The first respondent filed a counter denying the

petition allegations. The second respondent filed a counter

denying the petition allegations.

5. To prove the petitioners case, PWs.1 and 2 were

examined and Exs.A1 to A5 and Ex.X-1 were marked. On

behalf of the 2nd respondent, RWs.1 to 5 were examined and

marked Exs.B1 to B5.

6. After hearing both sides and on consideration of

the evidence, the Tribunal allowed the claim petition and

awarded compensation of Rs.3,40,000/- along with interest @

7.5% per annum from the date of petition till the date of

payment along with costs and Advocate fee payable by the

respondents. Challenging the same, the present appeal is filed

by the second respondent/Insurance Company.

7. Heard both sides. Perused the record.

8. Learned counsel appearing for the

appellant/Insurance company inter-alia contended that the

Tribunal utterly failed to see that as per Ex.B-5, the

Registration Certificate of the Tractor bearing No.AP-24-J-5192

clearly shows that the seating capacity of the Tractor Engine is

one i.e., the driver and the Insurance Company received the

premium for the driver only. Therefore, the Insurance

Company is not liable to pay compensation to the petitioners.

The Tribunal miserably failed to see that RW.2, who was

travelling on the Tractor Engine (Mudguard) at the time of the

accident clearly stated that the deceased, another two persons,

and himself sat on the Tractor Engine (Mudguard) at the time

of the accident and the Insurance Company has not received

the premium on the persons, who sat on the mudguard of the

Tractor including the deceased and therefore, the Tribunal

ought to have dismissed the O.P. as per the settled principles

of law. The Tribunal utterly failed to see that the driver, who

drove the Tractor and Trailer, did not have a driving licence,

and the Police Nakrekal issued a chargesheet against the

driver for not having a driving licence at the time of the

accident. The Tribunal ought to have dismissed the O.P.

against the Insurance Company, and the Tribunal ought to

have fixed the liability on the owner of the Tractor and Trailer

alone. The Tribunal grossly erred in awarding compensation of

Rs.3,40,000/-. Accordingly, prayed to allow the appeal.

9. Per contra, learned counsel for the

claimants/petitioners submitted that the Tribunal has rightly

awarded the compensation and no interference is required and

prayed to dismiss the appeal.

10. A perusal of the impugned order discloses that the

Tribunal, after considering the evidence of PWs.1 and 2

coupled with the documentary evidence i.e., Ex.A-1-FIR and

Ex.A-5-charge-sheet rightly held that the accident occurred

due to the rash and negligent driving of the driver of the

offending vehicle. Therefore, there are no reasons to interfere

with the finding of the Tribunal that the accident occurred due

to the rash and negligent driving of the driver of the offending

vehicle.

11. In the instant case, the petitioners claimed

compensation of Rs.3,00,000/-, and the Tribunal awarded

compensation of Rs.3,40,000/-, which is more than the

amount claimed by the petitioners.

12. Learned counsel appearing for the petitioners

contended that just and reasonable compensation could be

awarded to the petitioners. In support of his contention,

learned counsel for the petitioners placed reliance on the

judgment of this Court in D.KRISHNAVENI AND OTHERS Vs.

MOHD.SIKANDER AND ANOTHER 1, wherein this Court held

that 'just and reasonable compensation can be awarded and

there is no restriction for compensation to amount actually

claimed by the claimants and the Court has the power to grant

it".

13. In the present case, the question is only with

regard to the fixation of liability. The Tribunal fixed the

liability on respondent Nos.1 and 2. Aggrieved by fixing the

liability on the 2nd respondent, the present appeal is filed.

14. Learned counsel for the 2nd respondent contended

that the Tribunal erroneously held that both the respondents

are jointly and severally liable to pay compensation to the

petitioners. But, respondent No.2/Insurance Company has

resisted the claim petition, stating that the Registration

2009 (6) ALT 620

Certificate of the Tractor bearing No.AP-24-J-5192 clearly

shows that the seating capacity of the Tractor Engine is one

i.e., the driver and the Insurance Company received the

premium for the driver only. Therefore, the Insurance

Company is not liable to pay compensation to the petitioners.

In support of his contention, learned counsel for the 2nd

respondent relied upon the judgments of the Hon'ble Supreme

Court in National Insurance Company Limited vs Swaran

Singh & others 2 and Shamanna V. Divisional Manager,

the Oriental Insurance Co. Ltd 3 and also the judgment of

the Madras High Court in DIVISIONAL MANAGER, NATIONAL

INSURANCE COMPANY LIMITED Vs. RATHIKA AND

OTHERS 4, wherein the Madras High Court held as follows :-

"6. The learned counsel appearing for the appellant / Insurance Company submitted that the Tractor is a single seated vehicle and the Tractor is not a goods vehicle. The Tractor is permitted to be used only for agricultural purpose. By permitting the deceased Kannammal and few others to sit on the mudguard of the Tractor, the third respondent/ owner of the vehicle violated the terms and conditions of the Insurance Policy. Therefore, the owner of the vehicle alone is liable to pay the compensation. Fastening of liability on the Insurer to pay the compensation is not proper and hence, the same is liable

2004 (3) SCC 297

2018(9) (SC) 3726

2022 ACJ 1585

to be set aside. Though the appellant/Insurance Company disputed the entire liability, the Tribunal has ordered pay and recovery holding that the counsel for the Insurance Company has argued only for pay and recovery. The appellant / Insurance Company has never accepted for pay and recovery and therefore, the said finding of the Tribunal is liable to be set aside and consequently, the appellant/Insurance Company is liable to be exonerated from entire liability."

15. Learned counsel appearing for the 2nd respondent

also relied upon the judgment of the Madras High Court in

BRANCH MANAGER, ORIENTAL INSURANCE COMPANY

LIMITED, DHARMAPURI Vs. KAMATCHI AND OTHERS 5,

wherein the Madras High Court held as follows :-

"The Tribunal considering the pleadings, oral and documentary evidence held that the accident occurred only due to rash and negligent driving by the 2nd respondent and directed the appellant-Insurance Company to pay a sum of Rs.1,18,000/- as compensation to the 1st respondent at the first instance and recover the same from the 2nd respondent."

16. Upon bare reading of the impugned order, it is

observed that the Tribunal found that both the respondents

are liable to pay compensation to the petitioners. The Hon'ble

Supreme Court in Swaran Singh (supra) and in the catena of

decisions directed the Insurance Company to pay the

2021 ACJ 71

compensation, and liberty is granted to it to recover the paid

amount from the owner of the vehicle in case of violation of

conditions of Insurance Policy. In Shamanna (supra), the

Hon'ble Supreme Court held as under:

11. In the present case, to deny the benefit of 'pay and recover', what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two- Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that "if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle". The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case."

12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation

amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.

13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that "....that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."

17. In the present case also, the deceased was sitting

on the mudguard and due to the accident, he fell and

succumbed to the injuries. Applying the above decisions to the

present case and considering the submission of both the

counsel, this Court is of the considered view that the Tribunal

erred in holding that respondent Nos.1 and 2 are jointly and

severally liable to pay compensation to the petitioners. It is

just and proper to direct the 2nd respondent/Insurance to pay

the compensation amount to the petitioners at the first

instance and recover the same from respondent No.1 as it is

established that the policy issued by the 2nd respondent in

favour of the 1st respondent was very much in force as on the