Telangana High Court
Kothapally Ranuka And 2 Others vs Ashok Kumar And 2 Others on 23 January, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
M.A.C.M.A.No.1335 OF 2019
JUDGMENT :
Being aggrieved by the Judgment dated 25.06.2015
in O.P.No.170 of 2012 on the file of Motor Accident Claims
Tribunal-cum-IV Additional District Judge, Siddipet,
whereunder the Tribunal allowed their petition in part and
awarded a sum of Rs.20,56,132/- with proportionate costs
against their claim for Rs.25,00,000/- directing respondent
Nos.1 and 2 only, the petitioners in the above referred
original petition have filed this appeal under Section 173 of
M.V.Act and sought for enhancement of the compensation
to Rs.25,00,000/- and also for fixing the liability against
the 3rd respondent/insurance company on the following
grounds:
The Tribunal failed to appreciate the evidence and
committed an error in fixing the liability against
respondent Nos.1 and 2 and exonerating the 3rd
respondent-insurance company. The Tribunal failed to 2
appreciate the law by which already the Apex Court held in
many cases that the Court can direct the insurance
company to pay compensation and recover the same from
the owner of the vehicle. The Tribunal having appreciated
the fact that the respondent Nos.1 to 3 being driver, owner
and insurer of the offending vehicle ought to have fastened
the liability against all the respondents without
exonerating the insurance company and they have also
claimed that the Tribunal has taken a lenient view by fixing
the liability on the 2nd respondent and exonerating the
insurance company for payment of compensation.
2. As per the petition filed by the appellants herein it
was specifically claimed that on 22.07.2012 the husband of
1st appellant, son of the other two appellants namely
Kothapally Ravikanth Kumar (hereinafter be referred as
deceased) was proceeding from Somakkapet to Gajwel on
his motorbike bearing No.AP-23-R-4486 and on his way at
about 02:15 p.m., when he reached outskirts of
Anthagiripally, the driver of a lorry bearing No.RJ-11-GA-
0537 drove his lorry in a rash and negligent manner, in 3
high speed and dashed the motorbike, due to which the
deceased received fatal injuries and died on the spot. The
appellants have filed claim petition against the driver,
owner and insurer of the said lorry.
3. The driver and owner of the lorry remained exparte.
The 3rd respondent opposed the claim. The 3rd respondent
has contended that there was no such rash or negligent
driving of the lorry and the accident took place in view of
the negligence of the deceased itself. They have also
claimed that a false case has been filed before the police.
The respondent No.3 has disputed the issuance of policy
against the said vehicle.
4. As could be seen from the additional counter filed by
the 3rd respondent, it was further claimed that respondent
No.1/driver was not possessing valid driving licence at the
time of accident. The 3rd respondent has claimed that they
have obtained the copy of driving licence of respondent
No.1 and their investigation revealed that the said driving
licence is fake and not issued by the Transport Authority.
The 2nd respondent having allowed respondent No.1 who 4
has no valid licence to drive the lorry, thereby it amounts
to violation of policy conditions, as such sought for
dismissal of the petition.
5. The Tribunal framed the following (4) issues in the
first instance:
1. Whether the accident had occurred due to rash and negligent driving of driver of the crime vehicle lorry bearing No.RJ-11-GA-0537?
2. Whether the petition is bad for non-joinder of the owner and insurance company of Motorcycle bearing No.AP-23-R-4486?
3. Whether the claimants are entitled for the compensation, if so, what extent and from whom?
4. To what relief?
6. In view of the additional counter filed by respondent
No.3, the following additional issue was also framed by the
Tribunal:
Whether the accident had occurred due to rash and negligent driving of driver of the crime vehicle lorry bearing No.RJ-11-GA-0537?
5
7. During trial, the wife of the deceased was examined
as PW1. She has examined two more witnesses through
Exs.A1 to A7 were marked. The 3rd respondent was
examined RWs 1 and 2 and marked Exs.B1 to B4.
8. The Tribunal having considered the income of the
deceased and after deducting 1/3 of the said income
towards personal expenditure, and by applying appropriate
multiplier, came to the conclusion that the appellants
herein are entitled to a sum of Rs.20,56,132/-. However, in
view of the defense taken by the 3rd respondent against the
driver of the vehicle recorded a finding that the 1st
respondent was not having valid driving licence, the 2nd
respondent having allowed such a driver to drive lorry,
violated the policy conditions. Therefore, the Tribunal
allowed the petition only against respondent Nos.1 and 2
and exonerated the insurance company.
9. As could be seen from the evidence produced by 3rd
respondent through RWs 1 and 2 and Exs.B1 to B4, the
Court below came to conclusion that the particulars of the
driving licence of the 1st respondent mentioned in Ex.A5 6
M.V.report are false and there was no such driving licence
from the concerned Road Transport Authority (RTA). To
come to such a conclusion the Court below relied on the
evidence of RWs 1 and 2.
10. As per the material documents placed by the
insurance company it shows when RW1 forwarded the
licnecne particulars of the offending vehicle which were
available with the police record, they received a letter vide
Ex.B3 and through the said letter they came to know that
the driving licnece particulars mentioned in Ex.A5 were
incorrect. The 3rd respondent has examined the Sub
Inspector of Police who conducted the investigation of the
accident as RW2 and according to the evidence of RW2 the
accused in the criminal case furnished his driving licence
particulars, but he did not enquire whether the said
particulars are genuine or incorrect. Ex.B2 is the letter
said to have been issued by RTA to the 2nd respondent.
Ex.B3 is the letter issued by RTA and as per this letter, the
licence No.30677/AG/08 dated 01.01.2008, but they never
issued any driving licence with licence No.90/531/AG/08. 7
Therefore, the 3rd respondent contended that it is very clear
that licence produced by the 1st respondent is fake one.
11. However, the evidence placed before the Court clearly
indicates that the above said fining was recorded only on
the basis of oral evidence of RW1 and Exs.B1 to B3. The
insurance company which disputed the liability did not
chose to examine the concerned persons from the
concerned Road Transport Authority (RTA).
12. It is not known whether the said letter was really
issued by RTA, because a chance of manipulating the
document cannot be ruled out. In addition to this, there is
no evidence before the Court to believe that the 2nd
respondent has got knowledge about the fake licence
produced by the 1st respondent. He might have believed the
licence produced by 1st respondent and could have handed
over the vehicle to him. Therefore, it cannot be said that
the 2nd respondent owner of the vehicle violated the policy
conditions. Even otherwise, if the Court believes that the
driver of the vehicle hand no valid licence, still the
insurance company cannot escape the liability, and at best 8
it will have right to recover the amount from the owner and
driver of the vehicle.
13. As could be seen from the impugned award, it is very
clear that the learned Chairman, Motor Accident Claims
Tribunal simply on the basis of evidence produced by the
3rd respondent came to the conclusion that the 1st
respondent has produced a fake driving licence, thereby
the insurance company is not liable to pay compensation.
thereby, exonerated the 3rd respondent. However, the
Court below did not consider the settled proposition of law
with regard to payment of compensation in case of fake
driving licence of the driver of offending vehicle.
14. In a Judgment between United India Insurance
Company Ltd., vs Lehru and Others 1, the Hon'ble Apex
Court was pleased to observe that the insurance company
cannot avoid its liability towards the 3rd party on the
ground that the licence of the driver of a vehicle was a fake
licence. In order to avoid liability under Section
149(2)(a)(ii), it must be shown that there is a 'breach' on
1 AIR 2003 SC 1292 9
part of the insured. To hold otherwise would lead to absurd
results. The Hon'ble Apex Court was also pleased to
observe that when an owner is hiring a driver he will
therefore have to check whether the driver has driving
licence. If the driver produces a driving licence which on
the face of it looks genuine, the owner is not expected to
find out whether the licence has in fact been issued by a
competent authority or not. The owner would then take
the test of the driver. If he finds that the driver is
competent to drive the vehicle, he will hire the driver. It is
rather strange that insurance companies expect owners to
make enquiries with RTO's which are spread all over the
country, whether the driving licence shown to them is valid
or not. Thus where the owner has satisfied himself that the
driver has a lecence and is driving competently there would
be no breach of Section 149(2)(a)(ii). The insurance
company would not then be absolved of liability. If it
ultimately turns out that the licence was fake the
insurance company would continue to remain liable unless
then prove that the owner/insured was aware or had 10
noticed that the licence was fake and still permitted that
person to drive.
15. In the present case absolutely there is no evidence
produced by the 3rd party that respondent No.2 owner of
the vehicle has got knowledge that respondent No.1
produced a fake licence and still allowed him to drive the
lorry. Therefore, the Court below could not have
exonerated the 3rd respondent from payment of
compensation.
16. In another Judgment between Shamanna and
Another vs Divisional Manager, Oriental Insurance
Company Limited and Others 2, the Hon'ble Apex Court
while restoring the award passed by the trial Court
whereunder the insurance company was also directed to
pay compensation, allowed the insurance company to
recover the same from the owner of the vehicle after
making payment of the enhanced compensation. Similar
observations were made by the Hon'ble Apex Court in
2 (2018) 9 scc 650 11
another case between National Insurance Company
Limited vs Swaransingh and Others 3.
17. Therefore, the order of the Tribunal in so far as it
relates to exoneration of the 3rd respondent is liable to be
set aside. The 3rd respondent shall pay the compensation
to the appellant/claimants and shall recover the same from
respondent Nos.1 and 2 by initiating appropriate
proceedings.
18. In view of the judgments relied on by the appellants,
it is quite clear that the insurance company cannot escape
the liability of payment of compensation. Therefore, the
Court below could have directed the insurance company to
pay compensation by giving a liberty to recover the same
from respondent Nos.1 and 2. Therefore, the appeal
deserves to be allowed.
19. In the result, the appeal is allowed in part. The
impugned order so far as it relates to exoneration of the 3rd
respondent in payment of compensation is set aside. The
3rd respondent is directed to pay the compensation decided 3 2004 3 SCC 297 12
by the trial Court along with interest and costs and shall
recover the amount from respondent Nos.1 and 2 by
initiating appropriate proceedings.
As a sequel, pending Miscellaneous Applications, if
any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date:23.01.2024 PSSK
