Kotakondla Rathna Vs Rengichetty Manohar

Appeal filed under Order 41 of CPC before the High Courtpleased to call for the records relating to the MVOP NO.102 of 2018 on the file of the Motor Accident Claims Tribunal cum X Additional District Judge at Tirupati, Chittoor District and set aside the order dt.16-05-2022 with the extent of against the respondents 1 and 3 and passed the order only against the respondents 1 and 2 who are jointly and severally liable to be pay to the compensation to the appellant/petitioner herein by allowing the appeal as prayed for and pass

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IA NO: 1 OF 2023

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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 pleased to condone the delay of 4 days in filing the MACMA against the order and decree dt.16-05-2022 passed in MVOP No.102/2018 on the file of the Motor Accidents Claims Tribunal cum X Additional District Judge at Tirupati and pass

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IA NO: 2 OF 2023

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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 pleased to condone the delay of 92 days in resubmitting the above MACMA SR 48678/2022 and pass

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Counsel for the Appellant:

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1.V ESWARAIAH CHOWDARY

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Counsel for the Respondent(S):

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1.GUDI SRINIVASU

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The Court made the following:

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JUDGMENT:

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The appellant/claimant filed the present appeal questioning the dismissal of claim petition as against respondent No.2/insurance company vide order and decree 16.05.2022 in M.V.O.P.No.102 of 2018 on the file of the Motor Accidents Claims Tribunal-cum-X Additional District Judge, Tirupati, wherein the Tribunal granted compensation of Rs.9,28,000/- (Rupees Nine lakhs Twenty eight thousand only) to the appellant/claimant, though the claim petition was originally filed for Rs.8,00,000/-,on account of the death of the deceased B.Nagamma in a motor accident that occurred on 22.10.2015 and fixed liability on respondent Nos.1 and 3 only, the owner and driver of the offending vehicle respectively, and dismissed the claim against respondent No.2/insurance company.

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For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal.

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03. The case of the petitioners, in brief, is as follows:

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a) On 22.10.2015 at 10-00 a.m. when the deceased was proceeding

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from Annarao Circle side to Bhavani Nagar circle side near Sun-shine Hospital, K.T. Raod, Tirupati, the 3^rd respondent who drove the auto bearing No.AP-03-Y-2690 in a rash and negligent manner and dashed the deceased due to which the deceased sustained severe injuries and died on the spot. Basing on a report, the Station House Officer, Traffic Police Station, Tirupati registered a case in Crime No.83 of 2015 against the 3^rd respondent and after

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investigation, a charge sheet was filed in C.C.No.510 of 2015 for the offence under Section 304-A IPC, Section 3 read with 181 of the M.V. Act and Section 134(a) & (b) read with 187 of M.V. Act.

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b) It is the contention of the claimant that the deceased was aged about 50 years and was working as a domestic servant in two houses, earning Rs.4,000/- per month, contributing the same to the family. Therefore, the claimant sought compensation of Rs.8,00,000/- from respondents No.1 to 3, the owner, insurer and driver of the crime vehicle respectively.

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Before the Tribunal, the 1^st respondent-owner of the vehicle remained ex parte.

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The 2^nd respondent filed a counter-affidavit denying the averments made in the petition and contended that the petitioner is put to strict proof of the manner, mode of the accident, as well as the income and occupation of the deceased. It was further contended that the accident occurred due to negligence of the deceased, who was allegedly walking in the middle of the road without observing traffic rules and regulations. The 2^nd respondent also contended that the petitioner is required to produce legal heir certificate, that the claim made is highly excessive and that the auto bearing No.AP-03-Y-

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2690 must have been driven with a valid driving licence and valid documents. Accordingly, the 2^nd respondent prayed for dismissal of the petition.

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Basing on the pleadings, the Tribunal framed the following issues for trial:

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“1. Whether B.Nagamma, died in a motor vehicle accident occurred on 2210-2015 at about 10-00 am due to negligent driving of the Auto bearing No.AP-03-Y-2690 or not?

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2. Whether the Petitioner is entitled to any compensation, if so, to what amount and from whom?

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3. To what relief?”

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On behalf of the petitioner, P.Ws.1 and 2 were examined, and Exs.A1 to A5 were marked. On behalf of the 2^nd respondent, R.W.s 1 and 2 were examined and Exs.B1 and B2 were marked.

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After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal allowed the claim petition with the following terms:

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“In the result, the petition is allowed by awarding compensation amount of Rs.9,28,000-00 (Rupees Nine Lakhs and Twenty-Eight Thousand Only) with costs to the petitioner and with interest payable at 9% per cent per annum. The respondents 1 and 3 are jointly and severally liable to pay the said compensation with future interest at 9% p.a., and costs as above within one month from the date of this award. On such deposit, the petitioner is permitted to withdraw her share of compensation of Rs.5,00,000/- (Rupees Five Lakhs) along with accrued interest thereon and costs and the remaining amount of Rs.4,28,0000/- shall be kept in Fixed Deposit in any nationalized Bank for a period of two years. The petitioner is directed to pay Court Fee for the compensation amount of Rs.1,28,000-00. Advocate fee is fixed at Rs.1,500-00. The petition against the respondent No.2 is dismissed.”

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Aggrieved by the said award, the petitioner filed the present appeal on

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the sole ground that the Tribunal erred in exonerating the Insurance Company

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from liability despite the fact that the insurance policy of the offending vehicle was in force as on the date of the accident, merely on the ground that the driver of the offending vehicle did not possess a valid driving licence. Therefore, the impugned award warrants interference insofar as liability is concerned.

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On the other hand, learned counsel for respondent No.2/insurance company herein has supported the impugned award and prayed to dismiss the appeal.

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Now the point for consideration is:

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Whether the order of the Tribunal needs any interference ?

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Heard Mr.V.Eswaraiah Chowdary, learned counsel for the appellant and Mr.Gudi Srinivasu, learned counsel for respondent No.2.

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POINT:

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The appellant/claimant has preferred the present appeal on the ground that, though the vehicle was insured with respondent No.2, the Tribunal has held that respondent No.2 is not liable to indemnify the loss incurred by respondent No.1, the owner of the offending vehicle, on the ground that respondent No.3, who was driving the said vehicle, did not possess a valid driving license as on the date of the said incident.

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This Court, under similar circumstances, in its judgment dated 25.03.2025 in MACMA No.144 of 2015, held that the principle of “pay and

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recovery” is to be applied. In the said case also, the offending vehicle was validly insured under an insurance policy, which was in force as on the date of accident. However, since the driver of the offending vehicle was not having valid and effective driving license at the relevant point of time it amounted to breach of insurance policy conditions and therefore absolved the insurance company of any liability and allowed the claim petition only against the owner of the offending vehicle. This Court having considered the issue held as under:

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“10. On the issue of liability to pay the compensation by the insurer, if there was fundamental breach of insurance policy, the insurance company could be absolved of the liability. However, in those cases where the third party claimant suffered serious injuries and acquired permanent disability such as the one available in the case at hand, the consistent view taken by the Constitutional Courts is to apply the principle of pay and recover (Shamanna v. The Divisional Manager, The Oriental Insurance Co. Ltd. (2018) 9 SCC 650 and Parminder Singh v. New India Assurance Company Limited (2019) 7 SCC 217). In such view of the principles of law it is difficult to approve the impugned award to the extent that it absolved the insurance company totally. In the given facts and circumstances of this case this Court records that respondent No.2-Insurance Company need not shoulder the liability and indemnify the owner of the offending vehicle. However, this is a fit case to apply the principle of pay and recover. Therefore, the compensation awarded by the Claims Tribunal has to be first paid by the insurance company and thereafter the insurance company is entitled to file execution petition against the owner of the offending vehicle/respondent No.1 for recovering the same.”

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In the instant case also, it is not in dispute that the offending vehicle was insured with the insurance company under Ex. B1 policy and the said

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policy was in force as on the date of incident. Admittedly, the deceased sustained severe injures and died on the spot.

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It is to be noted that in National Insurance Co. Ltd. v. Swaran Singh & Ors.,¹ the Hon‟ble Supreme Court has held that if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the claimantsand then recover the amount from the insured (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies are statutorily required to protect third parties, and even in cases of breach by the insured, the insurer's liability towards third-party victims does not vanish immediately.

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In view of the above, and following the settled principles of law as held by the Hon‟ble Supreme Court in the decisions referred supra, this Court is of the opinion that the compensation awarded by the Tribunal in the instant case has to be first paid by the insurance company, and thereafter the insurance company can recover the same from the owner of the offending vehicle.

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Now coming to the quantum of compensation, the deceased was aged about 50 years, as on the date of the accident. As per the evidence of P.W.1 who is the daughter of the deceased, the deceased was working as a domestic servant in two houses and was earning Rs.4,000/- per month. In the absence of any documentary evidence, the Tribunal having considered

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1(2004) 3 SCC 297

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various judgments of the Hon‟ble Apex Court, has held that the income of the deceased can be taken as Rs.5,000/- per month, which comes to Rs.60,000/per annum (Rs.5,000 X 12). By applying the appropriate multiplier of „13‟ for the age group of 50 years, as laid down in Sarla Verma v. Delhi Transport Corporation² , the loss of earnings would come to Rs.7,80,000/-. The Tribunal, further added 10% towards future prospects, which comes to Rs.78,000/-, thereby totalling Rs.8,58,000/- (Rs.7,80,000 + 78,000). However, as rightly contended by the learned counsel for the insurance company, the Tribunal failed to deduct 1/3rd towards personal expenses of the deceased, as held in Sarla Verma case (referred supra). If 1/3rd is deducted towards personal expenses, the loss of dependency comes to Rs.5,72,000/(Rs.8,58,000 – 2,86,000).

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Apart from the said amount, the Tribunal also awarded Rs.40,000/towards consortium, Rs.15,000/- towards funeral expenses and Rs.15,000/towards loss of estate, which are just and reasonable and require no interference by this Court. Thus, the total compensation payable to the claimant is Rs.6,42,000/-.

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In view of the above discussion, the award passed by the Tribunal in MVOP No.102 of 2018 is modified by reducing the compensation from Rs.9,28,000/- to Rs.6,42,000/- with interest at 9% p.a from the date of filing of the petition till the date of realization. The liability also fixed on respondent

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22009 ACJ 1298

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No.2/Insurance Company, directing it to first pay the compensation to the claimant and thereafter recover the same from respondent Nos.1 and 3/owner

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and driver of the offending vehicle.

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