Telangana High Court

Reliance General Insurance Company ... vs Banothu Ganga on 9 February, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                    M.A.C.M.A.No.359 OF 2022

JUDGMENT:

Heard Sri Harinath Reddy Soma, learned Standing Counsel for

the appellant-insurance company and Sri B.Balaji, learned counsel for

the respondents-claimants.

2. The present appeal has been filed by the appellant/insurance

company challenging the Award passed by the Chairman, Motor

Accident Claims Tribunal-cum-VI Additional District Judge,

Mahabubabad (for short, 'Tribunal') in M.V.O.P.No.123 of 2019,

dated 08.3.2022 and thereby, seeking to set-aside the Award against

the insurance company.

3. The appellant is the insurance company, respondent Nos.1 to 3

are the petitioners-claimants, respondent No.4 is the driver and

respondent No.5 is the owner of the offending vehicle.

4. The brief factual matrix of the case is as under.

On 31.03.2016 at about 05:00 AM, one Banoth Hanuma

(hereinafter referred to as the "deceased") went to Khammam market LNA,J

with a load of chillies and after sale of the same in the market, he

boarded an auto rickshaw bearing No.AP 36 TB 5116 being driven by

respondent No.1 and on the way, respondent No.1 drove the said auto

in a rash and negligent manner in a high speed on Maripeda-

Mahabubabad Highway and when they reached the outskirts of

Daravath Thanda at about 07:30 PM, the driver tried to overtake

another auto proceeding in front of the offending vehicle and dashed

the motorcycle coming in the opposite direction, due to which the

deceased sustained injuries on his legs and other parts of the body and

died on the spot. As such, the Police concerned registered a case and

filed the charge sheet.

4.1. Therefore, the petitioners, who are the legal heirs of the

deceased, filed claim petition against the owner, driver and the insurer

of the offending vehicle, under Section 166(1)(b) r/w Section 455 of

the Motor Vehicles Act, before the Tribunal claiming compensation of

Rs.7,00,000/-.

4.2. The claimants pleaded that the deceased was aged about 50

years and was earning Rs.20,000/- per month through milk business LNA,J

and agriculture, and was contributing his earnings to the family. Due

to his sudden death, the claimants lost the sole bread winner of the

family.

5. Before the Tribunal, the driver and the owner of the offending

vehicle, who are respondent Nos.4 and 5 herein, remained ex-parte.

6. The appellant-Insurance Company filed written statement

denying all the allegations made in the claim petition and contended

that the driver of the offending vehicle was not having valid driving

license to drive the vehicle at the time of accident. It was contended

that the accident occurred only due to the negligence of the deceased

and disputed about the rash and negligent driving of the offending

vehicle by its driver and as such, the insurance company is not liable

to pay the compensation. Further, the age and earnings of the

deceased were also disputed. The claim is exorbitant and excessive

and prayed to dismiss the claim petition.

7. On the basis of the above pleadings, the Tribunal framed the

following issues:-

LNA,J

i) Whether the accident occurred due to the rash and negligent driving of the driver/respondent No.1 of the auto bearing No.AP 36 TB 5116 resulting in the death of Banoth Hanuma?

ii) Whether the respondents are liable to pay compensation amount to the petitioners to what amount?

iii) To what relief?

8. In order to substantiate the case, on behalf of the claimants, the

wife of the deceased was examined as PW.1 and the eye-witness was

examined as P.W-2 and Exs.A1 to A9 were marked. On behalf of the

appellant-insurance company, RW.1 was examined and Exs.B1 to B-7

were marked.

9. The Tribunal, on due consideration of the evidence and the

material placed on record, came to the conclusion that the accident

took place due to rash and negligent driving of the offending vehicle

by respondent No.2 therein-driver and awarded compensation of

Rs.7,28,400/- along with costs and interest @ 7.5% per annum from

the date of petition till the date of realization. The Tribunal also held LNA,J

that respondent Nos.1 to 3 therein were jointly and severally liable to

pay the said compensation amount to the claimants.

10. During the course of hearing of the appeal, learned counsel for

appellant-insurance company submitted that the Tribunal failed to

appreciate the fact that the driver of the offending vehicle did not

possess valid driving licence at the time of accident and as such, the

owner has violated the terms and conditions of the policy. Therefore,

the insurance company is not liable to pay compensation. He further

submitted that though the claimants did not prove the earnings of the

deceased, the Tribunal fixed his income as Rs.6,000/- per month

which is on higher side.

11.Consideration:

The principal contention raised by the appellant is that the

driver of the offending vehicle was not having driving license and that

despite notice to the driver and owner of the offending vehicle, they

failed to produce the driving licence of the driver of the offending

vehicle. Further, Ex.B-7-Driving licence was issued to the driver on

19.10.2018, whereas the accident occurred on 31.03.2016. Therefore, LNA,J

at the relevant time of the accident, the driver of the offending vehicle

did not possess valid and effective driving licence. In the impugned

Award, the Tribunal having held so, observed that mere absence of

driving license will not absolve the liability of insurance company and

thus, directed the insurance company to pay the compensation amount

and later, recover the same from the owner of the crime vehicle by

following the decision of Hon'ble Apex Court in National Insurance

Co. Ltd., vs. Swaran Singh and others 1.

12. With regard to exoneration of insurance company from its

liability for payment of compensation amount, it is relevant to

mention that the Motor Vehicles Act is beneficial legislation aimed at

providing relief to victims and their families. In Swaran Singh and

others (cited supra), the Hon'ble Apex Court held as under:

"107. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of

(2004) 3 SCC 297 LNA,J

insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.

108. Although, as noticed hereinbefore, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent."

13. In the light of decision of Hon'ble Apex Court in Swaran Singh

(supra), in considered view of this Court, the insurance company has

to first satisfy the award passed by the Tribunal and thereafter, the

insurance company is entitled to recover the same from the owner of

the offending vehicle.

LNA,J

14. In the light of the facts and circumstances of the case and the

legal position, this Court is of the considered opinion that the Tribunal

had rightly directed the insurance company to pay the compensation

and later to recover the same from the driver and owner of the crime

vehicles i.e., respondents 4 and 5 herein.

15. Learned counsel for appellant contended that the Tribunal erred