New India Assuranee Co. Ltd., Vs Smt. Biddika Nukamma

JEELAKARRA MA N GA, W/O. KAMESH, AGED 29 YEARS, R/O. SARUGUDUGUDA VILLAGE, KOMARADA, V I ZIANAGARAM DISTRICT. (RESP O NDENT NO.2 IS NOT A NECESSA R Y PARTY AS THE CLAIM AS A G AINST RESPONDENT NO.2 IS D ISMISSED BY THE TRIBUNAL)

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JALAGADUGULA R AVI, S/O. SATYAM, AGED 36 Y E ARS. DRIVER OF LORRY, BEA R ING NO. AP 16 TY 9194, R/O. G AJULAREGA, VIZIANAGARAM.

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KALLA MURALI K R ISHNA, , S/O. SATTIBABU, AGED NOT KNOWN, R/O. H.NO.530, P O OLBAGH COLONY, VIZIANAGARA M

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...RESPONDENT(S):

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Appeal filed under O rder 41 of CPC praying that the Hi g h Court may be pleased to present this Memorandum of Civil Miscellaneo u s Appeal being aggrieved by the Decree and Order Dt.09.02.2023 passed in M .V.O.P.No.702

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of 2021 on the file of the Court of the Motor Accidents Claims Tribunal-cum-I Addl. District Judge at Vizianagaram,

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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 to condone a delay of 171 days in presenting the Appeal before this Hon'ble Court against the Decree and Award dated 09.02.2023 passed in M.V.O.P.No.702 of 2021 on the file of the Court of the Motor Accident Claims Tribunal -cum- I Addl. District Judge, Vizianagaram 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 to stay all further proceedings including execution of the decree dated 09.02.2023 passed in M.V.O.P.No.702 of 2021 on the file of the Court of the Motor Accident Claims Tribunal -cum- I Addl. District Judge, Vizianagaram, pending disposal of MACMA before this Hon'ble Court and pass

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Counsel for the Appellant:

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1.C PRAKASH REDDY

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Counsel for the Respondent(S):

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1.P GOPALA KRISHNA

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The Court made the following Judgment:

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The Insurance Company/ Appellant filed the present Appeal challenging

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the order and decree 09.02.2023 in M.V.O.P.No.702 of 2021 on the file of the Court of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Vizianagaram, whereby and whereunder the Tribunal granted compensation of Rs.11,48,000/- to the Respondents/ Claimants, as against the claim of 12,00,000/- for the death of one Biddika Kantharao, (in short ‘the deceased’) in a motor accident that occurred on 03.03.2021.

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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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The case of the Petitioner is briefly as follows:

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On 03.03.2021 at about 4.00 p.m, the son of the Claimant No.1, B. Kanta Rao (deceased) was going to Kerada – Odissa on his new motorcycle and when he reached near Andhra Odissa Boarder, at that time, the Respondent No.1 driver of lorry bearing No. AP 16 TY 9194 drove the lorry in a rash and negligent manner with high speed or without observing the motorcycle of the deceased coming in opposite direction and dashed the motorcycle of deceased, due to which he received severe bleeding injuriesd and died on the spot. The Seshkhal Police Station registered a case in Crime No. 21 of 2021 under Section 279, 304-A of IPC as against the lorry driver i.e Respondent No.1. Therefore, the Claimants filed a claim petition seeking compensation against the Respondents.

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Before the Tribunal, the Respondents No. 1 and 2 i.e driver and owner of the offending vehicle remained exparte.

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Respondent No.3/ Insurance Company filed counter denying the material averments made in the petition and prayed to dismiss the petition.

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

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trial:

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“1. Whether the death of the deceased. Kanta Rao, S/o Aggi Ramudu, in the motor vehicle accident that occurred on 03.03.2021 at about 4.00 p.m,

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near Kerada Bridge of Andhra –Odisha Boarder, is due to rash and negligent driving of the 1^st respondent / driver of lorry No. AP 3516 TY 9194?

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2. Whether the petitioners are entitled to claim any compensation? If so, what amount and from which of the respondents?

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c. To what relief?

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On behalf of the Claimants, P.Ws 1 and 2 were examined and Exs.A1 to A5 were marked. On behalf of Respondent No.3, none was examine, except marked the insurance policy as Ex.B1.

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After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed the claim petition against Respondent No.3, awarding compensation of Rs.11,48,000/- with subsequent interest @ 9% per annum from the date of filing of the petition till the date of realization and directed Respondent No.3 to deposit the said amount within a month from the date of the order.

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Aggrieved by the said award, the Appellant/ APSRTC preferred this appeal on the ground that the Tribunal failed to observe the alleged accident due to head on collision between the motorcycle driven by the deceased and lorry bearing No. AP 16 TY 9194 and whereas the claim petition is filed only against the driver, owner and insurer of lorry bearing No. AP 16 TY 9194 without impleading owner and insurer of motorcycle and that the lorry is a heavy goods vehicle, whereas the driver of the lorry was not having valid driving license to drive heavy goods vehicle. As such, the Insurance Company is not liable to pay any compensation for violation of terms and conditions of

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the policy. Therefore, requested this Court to allow the Appeal by dismissing the Award passed by the Tribunal.

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On the other hand, learned counsel for the Respondent Nos.1 and 2 herein have 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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POINT:

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On perusal of the Award passed by the Tribunal, it can be observed that the Claimant No.2 got examined herself as PW-1, who deposed with regard to nature of the accident and got marked Ex.A1 to A5. Apart from the same, the Claimants also got examined PW-2, who is an eye-witness to the said accident, who was travelling along with the deceased by motorcycle as pillion rider at the time of accident, who categorically deposed that on 03.03.2021 at about 4.00 p.m when the driver of the offending lorry bearing No. AP 16 TY 9194 drove the same in a rash and negligent manner with high speed and without observing the motorcycle of the deceased, coming in opposite direction and dashed the motorcycle, as a result of which, the deceased sustained severe bleeding injuries and died on the spot. The Tribunal considering the fact that nothing was elicited during cross examination of PW-2 to discard the evidence in the manner in which the accident took place, coupled with Ex.A1 to A5, answered the issue No.1 holding that the Claimants

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have established the accident that took place due to rash and negligent driving of the driver of the offending lorry.

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Coming to the point that whether the Claimants are entitled for compensation from the driver of the vehicle on the ground that the driving of the offending vehicle has not valid driving license to drive heavy goods vehicle, when the policy i.e Ex.B1 was in force as on the date of accident.

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Admittedly, the driver was not possessing valid driving license as on the date of accident, which is in violation of terms and conditions of the policy. However, as the policy was in force, the Tribunal answered the issue No.1 holding that the Respondents No.1 to 3 are jointly and severally liable to pay compensation.

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However, 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 Claimants and 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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1 (2004) 3 SCC 297

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In the case on hand, the evidence adduced by the Appellant would substantially prove that the Respondent No.1 was not having valid driving license as on the date of accident. However, the Insurance policy was in force as on the date of accident, the Insurance Company is liable to pay compensation to the Claimants.

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Coming to the quantum of compensation awarded by the Tribunal, as per evidence of PW-1, the deceased used to work as a Painting Maistry and he used to earn an amount of Rs. 30,000/- per month. In the absence of any documentary evidence to that extent, the Tribunal fixed his notional monthly income of Rs. 7,500/-. Accordingly, his annual income would be Rs. 90,000/(Rs. 7,500/- x 12). As the age of the deceased 28 years as on the date of accident as per Ex.A2 - Postmortem Certificate and Ex.A3 – Inquest Report of the deceased, 40% of income can be added towards future prospects as per decision of “National Insurance Company Ltd., v. Pranay Sethi & Others”² . If same is added, the future earnings of the deceased would be Rs. 1,26,000/- (Rs. 90,000/- + 40%). As the Claimant No.1 is sole dependent on the deceased and the deceased was unmarried as on the date of accident, 50% of his income would be deducted towards personal and living expenses as per “Sarla Verma and Others v. Delhi Transport Corporation and Another”³ . After deducting half of the income, the annual income would come to Rs.63,000/-. After applying appropriate multiplier ‘17’ for the age ground between 26 – 30 years, the loss of dependency would come to Rs.10,71,000/-

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2 2017(6) ALD 170 (SC)

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3 2009 ACJ 1298 (SC)

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(Rs. 63,000/- x 17). Apart from the same, the Tribunal awarded compensation under conventional heads viz., Rs.44,000/- towards filial compensation; Rs.16,000/- towards loss of estate and Rs. 16,500/- towards funeral expenses. Thus, the total awarded amount is Rs. 11,48,000/-, which in the opinion of this Court is neither excessive nor exorbitant and is well reasoned.

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However, the issue that whether the Insurance Company can be liable to pay compensation when the driver of the offending vehicle was not having driving license to drive heavy goods vehicle, as per decision in National Insurance Co. Ltd. v. Swaran Singh & Ors.,⁴ 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 Claimants and 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 the case on hand, the evidence adduced by the Appellant would substantially prove that the driver of the offending vehicle was not having valid driving license as on the date of accident. However, the Insurance policy was in force as on the date of accident, the Insurance Company is liable to pay compensation to the Claimants.

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4 (2004) 3 SCC 297

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In view of the above discussion, while confirming the quantum of compensation awarded by the Tribunal, this Court deems it appropriate to allow the appeal in-part by directing the Appellant/ Insurance Company to deposit the compensation and then recover the amount from the owner and driver of the vehicle i.e Respondents No. 1 and 2/ Respondent No.3 and 4 herein.

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With the above direction, this appeal is partly allowed. No costs.

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Pending miscellaneous applications, if any, shall stand closed.

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___________________ JUSTICE V.SUJATHA

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Date: 07.04.2026

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KK

New India Assuranee Co. Ltd., v. Smt. Biddika Nukamma

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New India Assuranee Co. Ltd., v. Smt. Biddika Nukamma

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