Dismissed

The Oriental Insurance Co, Ltd. v. Boya K. Sivaiah and Another

Andhra Pradesh HC4 Sept 2024MACMA/1338/2006

Case brief

AI extract

What is this about?

Insurance appeals against Tribunal awards for death and injuries caused when an insured tipper capsized while carrying passengers travelling with their goats and sheep. The High Court held the insurer liable to pay compensation first and recover from the owner, enhanced compensation using notional income guidelines, and confirmed 9% interest.

What did the court decide?

Compensation enhanced: Rs.2,43,000/- to Rs.7,89,000/-, Rs.17,750/- to Rs.24,500/-, Rs.30,250/- to Rs.37,000/-, with 9% p.a. interest on enhanced amounts; insurer directed to deposit within two months.

The Oriental Insurance Co, Ltd. Vs Boya K. Sivaiah and… — Insurance | Andhra Pradesh HC (2024)

¶1

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

¶2

THURSDAY. THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

¶3

PRESENT

¶4

HONOURABLE SMT JUSTICE SUMATHI JAGADAM

¶5

M.A.C.M.A. No: 2485 of 2005

¶6

Between:

¶7

The Oriental Insurance Co Ltd, rep by its Authorised Signatory The Oriental Insurance Co Ltd., Regional Office, Begumpet, Hyderabad.

¶8

...Appellant/Respondent No.2

¶9

AND

¶10

Harijan Devdas, S/o.Buddanna, Age: 38 years, Business R/o.Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶11

. ■ .Respondent/Petitioner

¶12

S.Mastan Bee, W/o.S.Basheer Khan, Age ;53 years. Owner of Tipper bearing No. AP 21T 3579, R/o.Yerrabadu Village, Gonegandia Mandal. Kurnool District.

¶13

...Respondents/Respondent No.1

¶14

Appeal under Section 173 of MV Act, aggrieved by the Judgment and Decree dated 4-11-2004 passed in OP.No.719/2002 passed by MACT -cumPrincipal District Judge, Kurnool

¶15

This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and decree of the Lower Court and the material papers in the appeal and upon hearing the arguments of Sri. S AGASTYA SHARMA, Advocate for the Appellant and of Sri. J JANAKIRAMI REDDY, Advocate for the Respondent No.1

¶16

This Court doth order and decree as follows:

¶17

That the appeal be and hereby is dismissed

¶18

That the compensation awarded by the Tribunal be and hereby is

¶19

enhanced from Rs. 17,750/- to Rs. 24,500/-

¶20

That the petitioners are entitled to enhanced compensation amount of Rs.6750/- with interest @ 9% p.a. from the date of filing of the claim petition till realisation.

¶21

That the appellant/lnsurance company is directed to deposit the

¶22

compensation amount within two months from the date of receipt of a copy of this order after deducting the amount deposited earlier if any.

¶23

That on such deposit, the petitioner is permitted to withdraw the compensation amount with accrued interest thereon by filing proper application

¶24

That there be no order as to costs in this appeal

¶25

//TRUE COPY//

¶26

SOI- K KASIRAO ACHARI ASSISTANT REGISTRAR

¶27

SECTION OFFICER

¶28

To.

¶29

The Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Kurnool, Kurnool District

¶30

Three CD Copies

MV sree

HIGH COURT

DATED: 05/09/2024

DECREE

MACMA.No.2485 of 2005

¶36

DISMISSING THE MACMA

¶37

IN THE HIGH COURT OF ANDHRA PRADESH

¶38

AT AMARAVATI

¶39

THURSDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

¶40

PRESENT

¶41

HONOURABLE SMT JUSTICE SUMATHI JAGADAM jyi-A.C.M.A. Nn- 747Q

¶42

Between:

¶43

The Oriental Insurance Company Limited. Kurnool, rep. by its Authorised Signatory, Regional Office, . Begumpet, Hyderabad.

¶44

-Appellant/ Respondent No.2

¶45

AND

¶46

Smt. Begum Bee, W/o. Late K.Ussain Saheb , Age:35 years,R/o Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶47

Dhudvalli, S/o. Late K.Ussain Saheb, Age. 19 Years, R/o Yerrabadu

¶48

Village, Gonegandia Mandal. Kurnool District

¶49

Sabeera, D/o. Late K.Ussain Saheb , Age:17 Years,R/o Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶50

Chand Basha, S/o. Late K.Ussain Saheb. Age; 15 years, R/o Yerrabadu

¶51

Village, Gonegandia Mandal, Kurnool District.

¶52

Hazira Bee, D/o. Late K.Ussain ' Saheb. Age; 12 years R/o Yerrabadu

¶53

Village, Gonegandia MandaL Kurnool District.

¶54

[Res. 2 to 5 are minors, rep. by their mother-1^* Respondent]

¶55

Bade Saheb, S/o. Late K.Ussain Saheb, age:63 years, R/o Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶56

✓

¶57

...Respondents/Petitioners

¶58

7^ S.Mastan Bee, W/o S.Basheer Khan, age;53 years. Tipper, Owner

¶59

bearing No. AP-21-T-3579 R/o Yerrabadu Village and Post,

¶60

Gonegandia Mandal, Kurnool District.

¶61

...Respondent/Respondent No.1

¶62

Appeal under Section 173 of MV Act, aggrieved by the Judgment and Decree dated 4-11-2004 passed in OP.No.712/2002 passed by MACT -cumPrincipal District Judge, Kurnool

¶63

This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and decree of the Lower Court and the material papers in the appeal and upon hearing thd arguments of Sri. S AGASTYA SHARMA Advocate for the Appellant and of Sri. J JANAKIRAMI REDDY, Advocate for the Respondent No’s 1 to 6.

¶64

This Court doth order and decree as follows:

¶65

That the appeal be and hereby is dismissed

¶66

That the compensation awarded by the Tribunal be and hereby is

¶67

enhanced from Rs.2,43,000/- to Rs.7,89,000/-, and

¶68

That the petitioners are entitled to the enhance compensation amount of Rs.5,46,000/- with interest:^ 9% p.a. from the date of filing of the claim petition till realisation.

¶69

That the appellant/lnsurance company is directed to deposit the

¶70

compensation amount within two months from the date of receipt of a copy of this order after deducting the amount deposited earlier, if any.

¶71

That the apportionment and disbursement of the compensation to the petitioners shall be in terrhs of the order of the Tribunal

¶72

The petitioners shall pay the requisite Court fee for the amount awarded over and above the compensation claimed.

¶73

¶74

That there be no order as to costs in this appeal

¶75

//TRUE COPY//

¶76

SD/- K KASIRAO ACHARI ASSISTANT REGISTRAR

¶77

SECTION OFFICER

¶78

To.

¶79

The Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Kurnool, Kurnool District

¶80

Three CD Copies

MV sree

HIGH COURT

DATED: 05/09/2024

DECREE

MACMA.No.2479 of 2005

¶86

DISMISSING THE MACMA

¶87

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

¶88

THURSDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

¶89

PRESENT

¶90

HONOURABLE SMT JUSTICE SUMATHI JAGADAM

¶91

M.A.C.M.A. No: 1338 of 20nfi

¶92

Between:

¶93

The Oriental Insurance Co. Ltd, Kurnool, Rep. by its Authorised Signatory, Regional Office, Begumpet, Hyderabad

¶94

...Appellant/Respondent No.2

¶95

AND

¶96

Boya K. Sivaiah,S/o. Kesanna, Age:48 years. Business, R/o. Yerrabadu Village, Gonegandia Mandal, Kurnool District

¶97

...Respondent/Petitioner

¶98

S. Mastan Bee, W/o. S. Basheer Khan, Age:53 Years, Tipper, Owner bearing No.AP-21-T-3579 R/o. Yerrabadu Village And Post, Gonegandia Mandal, Kurnool District

¶99

...Respondent/Respondent No.1

¶100

Appeal under Section 173 of MV Act, aggrieved by the Judgment and Decree dated 4-11-2004 passed in OP.No.711/2002 passed by the MACT - cum- Principal District Judge, Kurnool

¶101

¶102

¶103

This Court doth order and decree as follows:

¶104

That the appeal be and hereby is dismissed

¶105

That the compensation awarded by the Tribunal be and hereby is

¶106

enhanced from Rs.30,250/- to Rs.37000/-

¶107

That the petitioners are entitled to enhanced compensation amount of

¶108

Rs.6750/- with interest @ 9% p.a. from the date of filing of the claim petition till realisation.

¶109

That the appellant/lnsurance company is directed to deposit the

¶110

compensation amount within two months from the date of receipt of a copy of this order after deducting the amount deposited earlier, if any.

¶111

That on such deposit , the petitioner is permitted to withdraw the compensation amount with accrued interest thereon by filing proper application

¶112

That there be no order as to costs in this appeal

¶113

SD/- K KASIRAO ACHARI ASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

The Chairman, Motor Accident Claims Tribunal-cum-Principal^District Judge, Kurnool, Kurnool District

¶118

Three CD Copies

MV sree

A ,

HIGH COURT

DATED: 05/09/2024

fc #

DECREE

MACMA.No.1338 of 2006

ep
m
S 31) JAN 2C25

DISMISSING THE MACMA

r •

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

¶130

THURSDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR *

¶131

PRESENT

¶132

honourable smt justice SUMATHI JAGADAM

¶133

M.A.C.M.A. No’s: 2479 & 2485 of 200*; and 1338 of 2nnR

¶134

M.A.C.M.A.No: 2479 of

¶135

Appeal under Section 173 of MV Act, aggrieved by the Judgment and Decree dated 04-11-2004 passed in OP.No.712/2002 passed by MACT - cum- Principal District Judge, Kurnool

¶136

Between:

¶137

The Oriental Insurance Company Limited, [ Kurnool, rep. by its Authorised Signatory, Regional Office, Begumpet, Hyderabad.

¶138

...Appellant/Respondent No.2

¶139

AND

¶140

Smt. Begum Bee, W/o...4ate K.Ussain Saheb , Age;35 years, R/o

¶141

Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶142

Dhudvalli, S/o. Late K.Ussain Saheb, Age: 19 Years, R/o Yerrabadu

¶143

Village, Gonegandia Mandal, Kurnool District.

¶144

Sabeera, D/o. Late K.Ussain Saheb , Age:17 Years,R/o Yerrabadu

¶145

Village, Gonegandia Mandal, Kurnool District.

¶146

Chand Basha, S/o. Late K.Ussain Saheb, Age:15 years, R/o Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶147

Hazira Bee. D/o. Late K.Ussain Saheb Age; 12 years R/o Yerrabadu

¶148

Village, Gonegandia Mandal, Kurnool District.

¶149

[Res. 2 to 5 are minors, rep. by their mother-Respondent]

¶150

e.-Bade.^aheb, S/o. Late K.Ussain Saheb, age;63 years, R/o Yerrabadu

¶151

Village, Gonegandia Mandal, Kurnool District.

¶152

. ■ -Respondents/Petitioners

¶153

S.Mastan Bee, W/o S.Basheer Khan, age:53 years. Tipper, Owner

¶154

bearing No. AP-21-T-3579 R/o Yerrabadu Village and Post,

¶155

Gonegandia Mandal, Kurnool District.

¶156

...Respondent/Respondent No.1

¶157

LA. NO: 2 OF 2005(MACMAMP. NO: 2839 OF 2005)

¶158

Petition under Section 151 CPC, praying that in the circumstances stated in the affidavit filed i in support of the petition, the High Court may be pleased grant stay of all further proceedings including execution of Judgment and Decree dated 04-11-2004, passed by MACT-cum- Principal District Judge, Kurnool, in OP.N6;712/2002

¶159

Counsel for the Appellant: SRI. S AGASTYA SHARMA

¶160

Counsel for the Respondent No’s 1 to 6 : SRI. J JANAKIRAMI REDDY

¶161

M.A.C.M.A. No: 2485 of 2005

¶162

Appeal under Section 173 of MV Act, aggrieved by the Judgment and Decree dated 04-11-2004 passed in OP.No.719/2002 passed by MACT - cum- Principal District Judge, Kurnool

¶163

Between:

¶164

The Oriental Insurance Co Ltd rep by its Authorised Signatory The Oriental Insurance Co Ltd., Regional Office, Begumpet, Hyderabad..

¶165

...Appellant/Respondent No.2 AND

¶166

Harijan Devdas, S/o. Buddanna, Age; 38 years, Business, R/o.

¶167

Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶168

...Respondent/Petitioner

¶169

S.Mastan Bee, W/o. S.Basheer Khan, Age ; 53 years. Owner of Tipper bearing No. AP 21T 3579, R/o.Yerrabadu Village, Gonegandia Mandal, Kurnool District.

¶170

...Respondents/Respondent No.1

¶171

LA. NO: 3 OF 2005(MACMAMP. NO: 2864 OF 2005)

¶172

Petition under Section 151 CPC, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings, including execution of judgment and decree dated 04.11.2004, passed in O.P.No.719/2002 by the learned MACT-cum-Principal District Judge, Kurnool

¶173

Counsel for the Appellant: SRI. S AGASTYA SHARMA

¶174

Counsel for the Respondent No.1: SRI. J JANAKIRAMI REDDY

¶175

M.A.C.Ivi.A. No: 1338 of 2nnfi

¶176

Appeal under Section 173 of MV Act, aggrieved by the Judgment and Decree dated 4-11-2004 passed in OP.No.711/2002 passed by the MACT - cum- Principal District Judge, Kurnool

¶177

Between:

¶178

The Oriental Insurance Co. Ltd, Kurnool, Rep. by Its Authorised Signatory, Regional Office, Begumpet, Hyderabad

¶179

...Appellant/Respondent No.2

¶180

AND

¶181

Boya K. Sivaiah, S/o. Kesanna, Age:48 years, Business R/o.

¶182

Yerrabadu Village, Gonegandia Mandal, Kurnool District

¶183

... Respondent/Petitioner

¶184

S. Mastan Bee, W/o. S. Basheer Khan, Age:53 Years, Tipper, Owner bearing No.AP-21-T-3579, R/o. Yerrabadu Village And Post,

¶185

Gonegandia Mandal, Kurnool District

¶186

...Respondent/Respondent No.1

¶187

LA. NO: 3 OF 2005(MACMAMP. NO: 4fi18 OF 2005)

¶188

Petition under Section 15r CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings including the execution of Judgment and Decree dated 04t1 1-2004 passed by MACT-cum-Principal District Judge, Kurnool in OP.No.711 of 2002 in the interest of justice.

¶189

Counsel for the Appellant: SRI. S AGASTYA SHARMA

¶190

Counsel for the Respondent No.1: SRI. J JANAKIRAMI REDDY The Court made the following:

¶191

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI I

¶192

THE HON’BLE SMT. JUSTICE SUMATHI JAGADAM

¶193

MAC.M.A.Nos.2479 & 2485 of 2005 and 1338 of 2006

¶194

M.A.C.M.A.No.2479 of 2005

¶195

Between:

¶196

The Oriental Insurance Co. Ltd., Kurnool, rep. by its Authorised Signatory, Regional Office, Begumpet, Hyderabad.

¶197

and

¶198

... Appellant/ 2'^'^ respondent

¶199

Begum Bee and others

¶200

...Respondents/ Petitioners/R.1

¶201

M.A.C.M.A.No.2485 of 2005

¶202

Between:

¶203

The Oriental Insurance Co. Ltd., Kurnool, rep. by its Authorised Signatory, Regional Office, Begumpet, Hyderabad.

¶204

and

¶205

.., Appellant/ 2^^ respondent

¶206

Harijan Devdas and another

¶207

... Respondents/ Petitioner/R.1

¶208

M.A.C.M.A.No.1338 of 2006

¶209

Between:

¶210

The Oriental Insurance Co. Ltd., Kurnool, rep. by its Authorised Signatory, Regional Office, Begumpet, Hyderabad.

¶211

... Appellant/ 2^ respondent

¶212

and

¶213

Boya K Sivaiah and another

¶214

"... Respondents/

¶215

Petitioner/R.1

¶216

Counsel for appellants

¶217

: Sri S. ^gastya Sarma

¶218

Counsel for R.1 to R.6 } (in MACMA No.2479 of 2005) } Counsel for respondent } Sri J. Janaki Rami Reddy

¶219

2 JS,J MACMA Nos.2479 of2005 & batch (in MACMA No.2485 of 2005) } Counsel for 1®' respondent } (in MACMA No. 1338 of 2006) } Counsel for 2"'^ respondent ; None appeared

¶220

This Court made the following:

¶221

COMMON JUDGMENT:

¶222

The 2"^^ respondent-insurance Company in M.V.O.P.Nos.712. 719 and 711 of 2002, preferred M'.A.C.M.A.Nos.2479 & 2485 of 2005 and 1338 of 2006, respectively, against .the common judgment and decrees dated 04.11.2004 passed by the Chairman, Motor Vehicles Accident Claims Tribunal - cum - Principal District Judge, Kurnool, in the said claim petitions

¶223

Since these three appeals arose from out of common judgment and the point involved is one and the same, they are heard together and disposed of by this common judgment.

¶224

For convenience, both the parties in the appeals will be referred to as they are arrayed in the claim petitions.

¶225

The petitioners are residents of Yerrabadu village. On 08.07.2002, the deceased, Ussain Saheb, and the petitioners in M.V.O.P.Nos.711 and 712 of 2002 and others were travelling along with goats and sheep in a Tipper Vehicle bearing Registration No. AP21-T-3579 belonged to the 1^‘ respondent from Yerrabadu village to Pattikonda village. When the said vehicle reached Kothiralla village, it capsized due to its driver's rash and negligent driving, resulting in the deceased and the petitioners in M.V.O.P.Nos. 711 and 712 of

¶226

¶227

JSJ MACMA Nos.2479 of 2005 & batch

¶228

2002 sustained grievous injuries. Immediately after the accident, they v/ere taken to the Government General Hospital, Kurnqol,^{fortreatment,\A/herethe} i deceased was reported to be dead. The 1®‘ respondent is the owner, and the 2"'^ respondent is the insurer of the vehicle; hence, both the respondents are jointly and severally liable to pay compensation.

¶229

The 1®* respondent was set ex parte. The 2"^^ respondent/insuran^ce company filed a counter denying the material averments^made in the claim petitions and pleaded that the vehicle driver did not have a valid driving licence at the relevant point in tirne and that there was a violation of the policy conditions. Ultimately, it has pleaded for the dismissal of the petitions.

¶230

Before the Tribunal, on behalf of the petitioners, the petitioner/wife of i the deceased in M.V.O.P.No.712 of 2002 was examined as P.W.1, petitioner in M.V.O.P.No.719 of 2002 was reviewed as P.W.3, and petitioner in M.V.O.P.No.711 of 2002 was examined as P.W.2 and Exs.A.1 to A.11 were marked. On behalf of the respondents, R.W.1 was examined,^andExs.B.1 and B.2 were marked.

¶231

The Tribunal, after considering the pleadings and documentary evidence, came to the conclusion that the accident occurred only due to rash and negligent driving on the part of the driver of the vehicle and, accordingly, awarded compensation of Rs.2,43,000/to the petitioners/L.Rs of the deceased in M.V.O.P.No.712 of 2002', Rs.17,750/to the petitioner in M.V.O.P.No.719 of 2002, and Rs.30,250/-to the petitioner^{inM.V.O.P.No.711} of 2002, with proportionate costs and interest at 9% p.a. from the date of

¶232

¶233

JS.J M/ICMA Nos.2479 of2005 & batch

¶234

petition till realisation, by a common judgment dated 04.11.2004 with a direction to the Insurance Company to pay the compensation to the petitioners at the first instance and later recover the same from the owner of the vehicle, nd Being aggrieved by the same, the 2 respondent-insurance Company, preferred the present appeals.

¶235

The main grounds raised in the appeals ^re that the driver of the vehicle had no valid driving licence at the time of the accident, which ISi a serious violation of the conditions of the policy. The victims travelled In the vehicle as unauthorised passengers, and therefore, they are not entitled to coverage as per Ex.B.2-policy conditions. The Tribunal was not justified in directing the Insurance Company to pay the compensation In the first instance and later recover the same from the vehicle owner; the Tribunal ought to have relied upon the decision in the case of New India Assurance Company Limited Vs. Asha Rani reported in AIR 2003 SC 223 and ought to have held that the Insurance Company is not liable to pay any compensation, and therefore. prayed that the appeals may be allowed by setting ’aside the award passed by the Tribunal.

¶236

¶237

Heard both sides and perused the record.

¶238

Admittedly, the accident occurred when the vehicle was transporting goods. There was no evidence adduced by the insurer that the owner of the vehicle authorised or permitted the owner of the goods which was being transported in the vehicle at the time of the accident to travel in the transport vehicle in question, nor is there any evidence to show that the driver was

¶239

¶240

JSJ MACMA Nos.2479 of2005 & batch

¶241

authorised to carry owners of the goods along with the goods in the transport vehicle in question. On 08.07.2002, the petitioners hired a vehicle to take goats and sheep from Yerrabadu village to Pattikonda village to sell them in I the market. The appellant insured the vehicle for carrying goods, and Ex.B:2 is policy. As per policy terms, one goods owner is eligible to travel in the vehicle under T. P. P. D. cover, which covers third party damages. The deceased, petitioners in M.V.O.P.Nos.719 and 711 of^{2002andtwoothers} had travelled in the goods vehicle along with thei/- goods on payment of the charges. In Abdula Razaq versus Sharifuunisa\ a Division^Bench of the Allahabad High Court has held that the insurance company is liable to pay compensation to the passengers since a goods vehicle is permitted to carry the hirer or an employee of the hirer of the goods^{vehicle.TheBenchhasalso} held that the owner of ggods travelling in the goods vehicle along with the goods died as the vehicle capsized, and therefore, the insurance company is liable to pay compensation.

¶242

At the time of the accident, the deceased. petitioners in M.V.O.P.Nos.719 and 711 of 2002, and two others had travelled as passengers in the vehicle along with goats and sheep. All the petitioners are illiterates and earn their livelihood by selling goats and sheep. They are innocent victims in the hands of the vehicle operator and the insurance I company. At this juncture, it is helpful to refer to the decision^oftheKerala High Court in Kesavan Nair Vs. State Insurance Officer^,^{wherein,while}

¶243

' 1984 ACJ 264 ^(1977) A.C.J. 219

¶244

¶245

JSJ MACMA Nos.2479 of 2005 & batch

¶246

holding that the insurer is liable to pay only if the insured isi liable to pay, the

¶247

Court observed thus:

¶248

h^nriiZn JfH and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability Lst be Caloyn the insurer, instead of its being restricted to cases where the vehicle for the I 'negligent. This is more a matter ^ is a lacuna in the law which I think it would be just to rectify. ”

¶249

The decision above squarely applies to the facts of the instant case.

¶250

The position of the gratuitous passengers or unauthorised passengers has also been explained in a recent judgment of the Supreme Court in National Insurance Co. Ltd. Vs, Bommithi Subbhayamma’ as under;

¶251

Z'iJerf'n^m amendment of 1994 the effect of the provision contained in Section 147 with resoect persons other than the owner of the goods or L auZTed representatives remains jhe same. Although the owner of the 9oods or his authorized representative would now be covered by the policy of insurancelegislaturein respectto ofprovidea goodsfor vehiclethe liabilityit wasof notthl Respect to passengers, especially gratuitous passengers who were neither contemplated at thedme the contract of insurance ivas entered into nor any premium was paid pVopl"'"' of

¶252

The issue in the present appeals is that the driver is not holding a^valid driving licence at the time of the accident. It is to be noted that the mere absence of endorsement in the licence to drive the transport vehicle does not amount to the interpretation that the driver is not holding a valid and effective driving license.

¶253

^ 2005 ACJ 721 (SC)

¶254

¶255

JS.J MACMA Nos.2479 of 2005 ($ batch

¶256

In National Insurance Co. Ltd. Vs. Swaran Singh"*, it is laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver vyas not having a licence at all. It was the obligation on the part of the owner to take adequate care to see^thatthe driver had an appropriate licence to drive the vehicle. The question regarding the owner's liability vis-a-vis the driver not possessing a valid lipence was considered. The

¶257

relevant paragraph of the judgment reads thus:

¶258

"89. Section 3 of the Act casts an obligation on a^{drivertoholdan} effective driving licence for the type^ of vehicle^{whichheintendsto} drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause^inSection2of the Act defines various categories of vehicles which^arecovered in broad types mentioned in sub-section (2) of Section 10. They are ‘goods carriage’, ‘heavy goods vehicle’, ‘heavy passenger motor vehicle’, ‘invalid carriage’, ‘light motor vehicle’, ‘maxi-cab’, ‘medium goods vehicle’, ‘medium passenger motor vehicle’, ‘motor-cab’, ‘motorcyple’, ‘omnibus’, ‘private service vehicle’, ‘semi-trailer’, ‘tourist vehicle’, ‘tractor’, ‘trailer’ and ‘transport vehicle’. In claims for compensation for accidents,^{variouskindsof} breaches with regard to the conditions of driving licences^arisefor consideration before the Tribunal as a person possessing a driving licence for ‘motorcycle without gear’,-[sic may be driving a vehicle] for which he has no licencd. Cases may also^arisewhere a holder of driving licence for ‘light motor vehicle’^isfoundtobe driving a ‘maxi-cab’, ‘motorcab’ or ‘omnibus’ for which^hehasno licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another^typeof vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely^becauseof some other unforeseen or intervening causes like mechanical

¶259

“ 2004(3) SCO 297

¶260

¶261

JSJ MACMA Nos.2479 of2005 & batch

¶262

failures and similar qther causes having no nexus with the driver ■no possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. ”

¶263

The Apex Court in Shamanna Vs. The Divisional Manager, The Oriental Insurance Company Limited^, following its earlier decision i n Swaran Singh (2 supra), reiterated that 'even if the driver does not possess any driving licence, 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 insurance company is directed to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle.

¶264

The other contention Of the appellant/lnsurance Company is that the Tribunal granted interest- at 9% p.a., which 'is excessive. The accident occurred in the year 2002, and the appeals were filed in the year 2005. The Appellant/lnsurance Company, without admitting to a just, fair and reasonable compensation, has dragged the matter for the last 20 years. Given the judgments of the Hon'ble Apex Court in Jakir Hussein Vs. Sabi^ and Municipal Corporation of Delhi Vs. Association of Victims of Uphar Tragedy about granting interest @ 9% p.a. in cases under the M.V.Act. This Court feels that there i IS no reason to modify the interest rate awarded by the Tribunal and the claimants are entitled to 9% interest awarded by the

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Tribunal.

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^ (2018) 9 see 650 ® (2015) 7 see 2154 ’(2011) 14Se481

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The learned counsel for the appellant/insurance Company relied upon the decision of the Apex Court in Ramachandrappa Vs. Manager, Royal Sundaram Aliance Insurance Co.Ltd.^, wherein the Apex^{Courtfixedthe} monthly earnings of a coolie, aged 35 years, at Rs.4,500/-^{ontheobservation} that there was no evidence contrary to his claim. In the instant case, the respondents also placed no, rebuttal evidence, and it can be safely said that the petitioner will be earning sufficiently by the nature of their work, and the monthly income of the deceased can safely be accepted as Rs.4,000/-. .

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In Sarla Verma v. Delhi Transport Corporation^, the Apex Court held that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is.fair and equitable, on the facts^{andcircumstancesof} the case, to make good the loss suffered as'a result of the wrong, as far as money can do so, by applying the well settled principles relating to the award of compensation. It is not intended to be a bona,nza, largesse or source of profit.

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The accident in question occurred on 08-07-2002. Regarding^M.V.O.P. No. 712 of 2002, the Tribunal considered the deceased's income to be Rs.1,750/- per month for awarding compensation. The age of the deceased is considered as 40 years as per the post-mortem certificate, Ex.A.1. As per the guidelines issued by the State Legal Services Authority^{forsettlementofcases} before Lok Adalat, the notional income of the deceased,^{fortheaccidentofthe}

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2011 (6) ALD 75 (SC) ’(2009) 6 see 121 V

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year 2002, is taken as Rs.4,000/- per month. The petitioners in the O.P. are also entitled to compensation towards loss of future prospects at 40% which comes to Rs.1,600/-, Then, the total monthly income comes to Rs.5,600/-, out of which 1/4‘^ of the income has to be deducted towards the personal and living expenses of the deceased. The remaining Rs.4,200/has to be considered for calculating the loss of dependency. Thus, Rs.7,56,000/(Rs.4,200/X 12 months X multiplier ‘15’) is awarded towards loss of dependency. Therefore, the petitioners in the O.P. are entitled to compensation of Rs.7,89,000/(Loss of dependency Rs.7,56,000/+ » Rs.33,000/- awarded by the Tribunal under other heads). 20. With regard to M.V.O.P. No.,719 of 2002, as per the guidelines issued by the State Legal Services Authority for settlement of cases before Lok Adalat, the notional income of'the petitioner, for the accident of the year 2002, is taken as Rs.4,000/- per month and accordingly, a sum of Rs. 12,000/is awarded towards loss of earnings for three months. Thus, the petitioner is entitled to compensation of Rs.24,500/- (Loss of earnings Rs. 12.000/+ Rs. 12,500/- awarded by the Tribunal under other heads).

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With regard to M.V.O.P. No. 711 of 2002, as per the guidelines issued by the State Legal Services Authority for settlement of cases before Lok Adalat, the notional income of the petitioner, for the accident of the year 2002, IS taken as Rs.4,000/- per month and accordingly, a sum of Rs. 12,000/is awarded towards loss of earnings for three months. Thus, the petitioner IS entitled for compensation of Rs.37.000/- (Loss of earnings Rs. 12,000/+ Rs.25,000/- awarded by the Tribunal under other heads)

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11 JSJ MACMA Nos.2479 of2005 & batch

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M.A.C.M.A.No.2479 of 2005

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The compensation awarded by the Tribunal is enhanced from Rs.2,43,000/to Rs.7,89,000/-, and the petitioners are entitled to the enhanced compensation amount of Rs.5,46,000/- with interest @ 9% p.a. from the date of filing of the claim petition till realisation. The appellant/insurance company is directed to deposit the compensation amount^{withintwomonths} from the date of receipt of a copy of this order after deducting the amount deposited earlier, if any. The apportionment and disbursement of the compensation to the petitioners shall be in terms of^{theorderoftheTribunal.} However, the petitioners shall pay the requisite Court fee for the amount awarded over and above the compensation claimed.

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As a result, the appeal is dismissed, but with modifications^intheaward passed by the Tribunal concerning the amount of compensation, as made herein above, in favour of the petitioners. There is^{rioorderastocosts.}

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M.A.C.M.A.No.1338 of 2006

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The compensation awarded by the Tribunal is enhanced from Rs.30,250/to Rs.37,000/-, and the petitioner is entitled to the enhanced compensation amount of Rs.6,750/- with interest @ 9% p.a. from the date of filing of the claim petition till realisation. The^{appellant/lnsurance} company is directed to deposit the compensation amount within^{aperiodoftwomonths} from the date of receipt of a copy of this order after deducting the amount deposited earlier, if any, and on such deposit, the^petitioner is permitted to

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12 JSJ MACMA Nos.2479of2005 & batch

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withdraw the compensation amount with accrued interest thereon by filing the proper application. In the result, the appeal is’dismissed, but with modifications in the award passed by the Tribunal concerning the amount of compensation, as made herein above, in favour of the petitioner. No order as to costs.

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M.A.C.M.A.No.2485 of 2Q0S

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The compensation awarded by the Tribunal is enhanced from Rs. 17,750/- to Rs.24,500/-, and the petitioner is entitled to the enhanced compensation amount of Rs.6,750/- with interest @ 9% p.a. from the date of filing of the claim petition till realisation. The appellant/lnsurance company is directed to deposit the compensation amount within a period of two months from the date of receipt of a copy' of this order after deducting the amount deposited earlier, if any, and on such deposit, the petitioner is permitted to withdraw the compensation amount with accrued interest thereon by filing the proper application.

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In the result, the appeal is dismissed, but with modifications in the award passed by the Tribunal concerning the amount of compensation as made herein above, in favour of the petitioner. No order as to costs.

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As a sequel thereto, miscellaneous petitions, if any pending, shall also

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stand closed.

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To,

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SD/- K KASIRAO ACHARI ASSISTANT REGISTRAR //TRUE COPY// — SECTION OFFICER

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