Partly allowed

National Insurance Company Litd v. Dasari Lakshmi Devi and 2 Others

Andhra Pradesh HC14 Sept 2023MACMA/1614/2013

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court examined the liability of the Insurance Company to deposit the balance compensation award to the dependents of the deceased despite the driver's lack of valid license, relying on the principle that the insurer must satisfy the award at the first instance.

What did the court decide?

The Insurance Company is directed to deposit the balance compensation amount with interest at 6% per annum within two months so that claimants may recover their share and the insurer can later recover

National Insurance Company Litd Vs Dasari… — Motor Accident Claims | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO

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M.A.C.M.A.No.1614 of 2013

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JUDGMENT:

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Aggrieved by the impugned award and order passed in M.V.O.P.No.299 of 2009 on the file of the Motor Accident Claims Tribunal-cum-Principal District Judge, Kadapa whereby the Tribunal awarded an amount of Rs.3,51,000/- towards total compensation to the claimants against 1^st and 2^nd respondents, this instant appeal is preferred by 2^nd respondent/Insurance Company.

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For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim application.

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The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/towards compensation for the death of Dasari Obulesu in a motor vehicle accident that occurred on 18.03.2009. 1^st claimant is the wife and 2^nd claimant is the son of the deceased.

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The brief averments of the claim petition are as follows:

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On 18.03.2009, the deceased along with his wife/1^st claimant

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went to Y.Kothapalli and after completion of his work while they were returning to their village along with his brother-in-law and at about 7:30 p.m., while they were walking on the road along with the push cart, when they crossed TTD Kalyana Mandapam, Simhadripuram village, a motor cycle bearing No.AP 28BJ 8678 being driven by its rider in a rash and negligent manner with high speed and without blowing horn dashed the deceased due to which he fell on the road and the motor cycle ran over him and further dashed to the cart and the deceased sustained severe injuries and died on the spot. A case in Crime No.40 of 2009 was registered against the rider of the two wheeler. 1^st respondent is the owner and 2^nd respondent is the insurer of the offending vehicle motor cycle.

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1^st respondent remained ex parte .

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6. 2^nd respondent/Insurance Company filed a written statement

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denying the claim of the claimants and also rash and negligent riding of the rider of the two wheeler.

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Based on the above pleadings, the Tribunal framed the following issues for trial:

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Whether the accident was on account of the rash and negligent driving of the driver of the vehicle bearing No.AP 28 BJ 8678 whether 1^st and 2^nd respondents are jointly and severally are liable to answer the claim?

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If so, what is the quantum of compensation that the petitioners are entitled to and who are liable to pay the compensation?

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To what relief?

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During the course of enquiry, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A5 were marked. On behalf of 2nd respondent/Insurance Company, R.W.1 was examined and got marked Ex.B1-Policy Copy.

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At the culmination of the enquiry, on considering the entire material on record, the Tribunal awarded an amount of

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Rs.3,51,000/- towards total compensation to the claimants against 1^st and 2^nd respondents. Aggrieved against the said order, this instant appeal is filed by 2^nd respondent/Insurance Company.

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Heard Sri V.Veerabhadrachary, learned counsel for the appellant/National Insurance Company Limited and Sri K.Rathangapani Reddy, learned counsel for 1^st and 2^nd respondents.

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Now, the point for determination is:

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1. Whether the order passed by the Tribunal needs any interference? To what extent?

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POINT :

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In order to prove the rash and negligent riding of the rider of the offending vehicle two wheeler, the petitioners relied on the evidence of PWs.1 and 2. The material on record reveals that P.Ws.1 and 2 are the eye witnesses to the accident, P.W.2 supported the evidence of P.W.1. On appreciation of entire evidence on record, the Tribunal came to the conclusion that the accident in question occurred due to rash and negligent riding of the

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rider of the offending vehicle two wheeler. I do not find any legal flaw or infirmity in the said finding given by the Tribunal. Therefore, there is no need to interfere with the above finding given by the Tribunal.

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Coming to the compensation, the material on record reveals that even though the claimants claimed monthly income of the deceased was Rs.8,000/- per month, the Tribunal, by giving valid reasons, arrived the monthly income of the deceased was Rs.3,000/- per month from out of which 1/3^rd is deducted towards personal expenses of the deceased. If 1/3^rd amount is deducted, an amount of Rs.2,000/- is available to the claimants. Since the deceased was aged between 41 – 45 years, the relevant multiplier applicable to the age group of the deceased was „14‟ as per the decision of the Hon‟ble Supreme Court of India in Smt.Sarla Varma Vs. Delhi Transport Corporation¹ . Therefore, an amount of Rs.3,36,000/- was awarded by the Tribunal towards loss of dependency to the claimants. In addition to that, an amount of

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1 1 2009 (4) SCJ 91

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Rs.10,000/- was awarded towards loss of consortium to 1^st claimant, an amount of Rs.5,000/- was awarded towards funeral expenses of the deceased. In total, the claimants are awarded an amount of Rs.3,51,000/- towards total compensation by the Tribunal.

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The Tribunal held in its order that the offending vehicle is insured with 2^nd respondent/Insurance Company and the policy is in force and both the respondents are jointly liable to pay the compensation amount. The appellant/Insurance Company is questioning the said finding given by the Tribunal. As seen from the material on record, the Insurance Company relied on the evidence of R.W.1-Administrative Officer of National Insurance Company Limited. As per his evidence, the rider of the offending vehicle was not having any valid driving license to drive the offending vehicle. To rebut the said evidence, no evidence is produced by the claimants to show that the rider of the offending vehicle is having driving license to drive the offending vehicle. Therefore, it is clear that the rider of the offending vehicle is not having any valid and effective driving license by the date of accident. The principle laid

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down in National Insurance Co. Ltd. vs. Swaran Singh and others² case is that “even in case of absence, fake or invalid license or disqualification of the driver for driving, the Insurance Company is liable to satisfy the award in favour of third party at the first instance and later recover the award amount from the owner of the offending vehicle, even when the Insurance Company could establish the breach of terms of the policy, on the part of the owner of the vehicle”. It was represented that 50% of the compensation awarded by the Tribunal was deposited before the Tribunal. Learned counsel for 1^st and 2nd respondents/claimants represented that the said amount was withdrawn by the claimants. Ex.A5-Certified Copy of the Charge Sheet shows that the rider of the offending vehicle was charged under Section 181 of Motor Vehicle Act. Therefore, the rider of the offending vehicle is not having any driving license by the time of accident. Therefore, appellant/Insurance Company is liable to deposit the balance amount of compensation amount which was awarded by the Tribunal and later recover the total amount of

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2 AIR 2004 SC 1531

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compensation from the owner of the offending vehicle/1^st respondent in the claim application.

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In the result, the appeal is disposed of. The order passed in M.V.O.P.No.299 of 2009 on the file of the Motor Accident Claims Tribunal-cum-Principal District Judge, Kadapa is modified as 2^nd respondent/Insurance Company is directed to deposit the balance amount of compensation with interest at the rate of 6% per annum within two months from the date of this Judgment and later recover the total amount of compensation of Rs.3,51,000/- as ordered by the Tribunal from the owner of the offending vehicle by filing an execution petition and without filing any independent suit. On such deposit, the claimants are entitled to withdraw the balance amount of compensation equally with interest and costs. The order of the Tribunal with regard to all other respects shall remain intact. There shall be no order as to costs.

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As a sequel, miscellaneous petitions, if any, pending in the

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appeals shall stand closed.

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_______________________________ V.GOPALA KRISHNA RAO, J

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ANI 14-09-2023

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