Partly allowed

Oriental Insurance Company Limited, v. Burugu Appayya

Telangana HC25 Aug 2010CMA/2705/2001

Case brief

AI extract

What is this about?

This court set aside a Motor Accidents Claims Tribunal award against the insurer and the 2nd respondent. The insurer was relieved of liability due to the driver violating policy terms, while liability was fastened on the 3rd respondent (vehicle owner). The claimant retains the deposited amount.

What did the court decide?

The Tribunal award is set aside against the 2nd respondent and the insurer. The 3rd respondent is made liable. The claimant is entitled to withdraw the deposited amount.

Oriental Insurance Company Limited, Vs Burugu Appayya — Insurance | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND TEN

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HON’BLE SRI JUSTICE G. BHAVANI PRASAD

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C.M.A. No.2705 of 2001 and Cross Objections

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C.M.A. No.2705 of 2001:

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Between:

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The Branch Manager, Oriental Insurance Company Limited, Khammam .. Petitioner
AND
Burugu Appayya and others .. Respondents
Cross Objections:
Between:
B. Madhusudhan Reddy .. Cross objector/ 3^rd
respondent AND
The Oriental Insurance Company Limited rep. by its Branch Manager, Khammam and others ..
Respondents

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COMMON JUDGMENT:

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The appeal and the cross-objections are directed against the award in O.P. No.926 of 1996 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Khammam, dated 05-07-2000.

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The factual background for the appeal and the crossobjections is that the claim petitioner was involved in a motor accident on 29-05-1996 when the tractor No. AEH 2301 and trailer No.2302 dashed against the motor cycle on which he was going as a pillion rider, due to which he sustained injuries on the left leg and left forearm. Penubally police registered a case against the driver of the tractor/1^st respondent in Crime No.86 of 1996 and the claim petitioner was treated at Government hospital, Penubally and then at Government Headquarters hospital, Khammam and later at Amrutha Deepa Nursing Home, Kothagudem. He was in-patient for more than two months and had a surgery for insertion of a steel rod in his left leg. He incurred about Rs.10,000/- towards medical expenses and sought for a compensation of Rs.50,000/- from the 1^st respondent driver, respondents 2 and 3, the owners of the tractor, and the 4^th respondent, the insurer jointly and severally.

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The 2^nd respondent contested the claim denying the ownership of the tractor by the time of the accident, as he had already sold away the vehicle to the 3^rd respondent. Respondents 1 and 2 also denied the 1^st respondent being the driver of the tractor at the time of the accident. The 3^rd respondent contested the claim contending that he was not the owner at the time of the accident, but it was the 2^nd respondent. The 4^th respondent/insurer contested the claim denying any rash and

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negligent driving of the tractor or the other claims of the petitioner and contended that the owner and driver of the scooter are necessary parties to the petition. It was also claimed that the 1^st respondent was not holding a valid driving licence and the claim was excessive.

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The Tribunal framed issues on the responsibility for the accident, the entitlement of the claim petitioner for compensation and the liability of the respondents.

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During the enquiry, P.Ws.1 and 2 and R.W.1 were examined and Exs.A.1 to A.22 and B.1 and B.2 were marked.

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The Tribunal rendered the impugned award firstly concluding that the tractor and trailer driven by the 1^st respondent were driven rashly and negligently resulting in the accident as disclosed by Ex.A.1 first information report and Ex.A.2 charge-sheet, which corroborated the claims of the injured-P.W.1. The Tribunal noted the claims of the claim petitioner about the injuries and the treatment and the corroboration afforded by the medical officer P.W.2 to the claims of P.W.1 and grant of a lump sum amount of Rs.50,000/- as compensation was considered just and adequate by the Tribunal. The Tribunal further found that the licence possessed by the 1^st respondent was only to drive light motor vehicles and 1^st respondent was not authorized to drive the transport vehicle. As the 1^st respondent’s licence includes tractors, the Tribunal was of the opinion that he cannot be considered to be not having a valid driving licence and hence, it made all the four respondents liable jointly and severally to pay compensation to the claim petitioner. It awarded interest at 12 per cent per annum and also costs against the respondents.

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The insurer preferred the appeal contending that the Tribunal should have noted that the driver had no valid driving

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licence to drive heavy motor vehicles and the claim should have been dismissed against the insurer for violation of the terms and conditions of the insurance policy. The award is also assailed on grounds of incorrect appreciation of evidence on record.

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The 2^nd respondent to the claim filed his cross-objections contending that when he was not the owner of the vehicle at the relevant time and the 3^rd respondent was the owner, no liability could have been fastened to the 2^nd respondent.

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Sri N. Gowtham Reddy, learned counsel representing Smt. S.N. Padmini, learned counsel for the appellant and Sri Korrapati Subba Rao, learned counsel for the cross-objector are heard and the claimant in and the other respondents to the claim petition before the Tribunal did not enter their appearance before this Court.

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It should also be noted that while granting interim stay on 27-07-2001 in C.M.P. No.14011 of 2001, this Court imposed a condition on the insurer to deposit the entire amount awarded by the Tribunal including costs and interest within the specified time, while giving credit to the amount, if any, already deposited by it. It was submitted by the learned counsel for the appellant on 10-122001 that the said order had been complied with and this Court directed the Tribunal to keep the amount in a nationalized bank for a period of five years, while allowing the claimant to withdraw the interest accrued thereon once in a quarter pending further orders. The said interim order continues to be in force.

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The conclusion of the Tribunal about the responsibility for the accident with the 1^st respondent driver of the tractor-trailer is not challenged by any party to the claim petition and the said finding can be considered to have become final.

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As such, the liability of the 1^st respondent to justly and

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adequately compensate the claimant cannot be in doubt.

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That leaves the question of the liability of respondents 2 to 4 to the claim petition, while it should be further noted that the justification for grant of quantum of compensation of Rs.50,000/with interest at 12 per cent per annum and costs is also not seriously in dispute by any party. The Tribunal has given cogent and convincing reasons for arriving at the quantum of compensation in the light of the injuries and their consequences, the medical expenses incurred, the requirement for the claimant to undergo another surgery, the permanent disability of 20% suffered by him, etc.

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Therefore, the only question that has to be considered is the inter se liability of respondents 2 to 4.

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Ex.B.1 certificate issued by the additional licensing authority, Sathupally showed that the 1^st respondent had only a licence to drive light motor vehicles including tractors (nontransport). The evidence of R.W.1, the Motor Vehicles Inspector, showed that the 1^st respondent was not authorized to drive either a transport vehicle or a tractor and trailer. There was no contrary evidence to doubt the claims of R.W.1 and the reference by the Tribunal to the absence of evidence about the tractor and trailer being of a weight of more than 4000 Kilo grams may not be quite material when the tractor and trailer are being used as a transport vehicle and when the Motor Vehicles Inspector, while claiming as R.W.1 about the disentitlement of the 1^st respondent to drive such vehicles, would have obviously kept in view the statutory prescription about the weight of such vehicles and the nature of use of the vehicles. In the absence of any contrary evidence to Ex.B.1 and R.W.1, the Tribunal cannot be considered justified in not taking into account the absence of any valid driving licence for

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driving the tractor and trailer by the 1^st respondent, which will be a patent violation of the terms and conditions of Ex.B.2 insurance policy. If there were such violations of the terms and conditions, the insurer cannot be made liable to pay the compensation.

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In so far as the owner of the tractor and trailer is concerned, he is bound to jointly and severally compensate the claimant and the dispute between the cross-objector herein and the 3^rd respondent to the claim is about who was the owner by the time of the accident. It is not a disputed fact that the 2^nd respondent sold the tractor and trailer to the 3^rd respondent, the only controversy being as to whether such transfer was before or after the accident. Ex.B.2 certified true copy of the insurance policy issued by the appellant herein is in favour of the 3^rd respondent as the owner and in the absence of any oral or documentary evidence for the cross-objector herein and the 3^rd respondent, Ex.B.2 can be safely taken as the basis for concluding that the 3^rd respondent was the owner of the tractor and trailer at the time of the accident and therefore, he alone should be made liable and not the 2^nd respondent for payment of any compensation.

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As the insurer is found justified in complaining of the violation of the terms and conditions of the insurance policy, the appropriate consequential relief should be given to it, but as it had already deposited the entire compensation awarded by the Tribunal including costs and interest as per the orders of this Court in C.M.P. No.14011 of 2001, dated 27-07-2001 and as the said amount must have been kept in fixed deposit with payment of interest to the claimant from time to time as per orders of this Court, dated 10-12-2001, this is an appropriate case where the clock need not

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be set back and the amount already paid by the insurer to the credit of the matter can be permitted to be recovered from the 3^rd respondent to the claim petition. The appeal and the crossobjections have to be ordered accordingly.

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Therefore, the award, dated 05-07-2000 in O.P. No.926 of 1996 on the file of the Motor Accidents Claims Tribunal-cumAdditional District Judge, Khammam is set aside against the 2^nd respondent therein, and O.P. No.926 of 1996 is dismissed without costs against the 2^nd respondent therein and the 4^th respondent therein is entitled to recover the amounts paid by it as per the award from the 3^rd respondent therein, while the claimant in O.P. No.926 of 1996 is entitled to withdraw and receive the entire amount in deposit to the credit of the matter as per the impugned award. The appeal and the cross-objections are ordered accordingly without costs.

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_____________________ G. BHAVANI PRASAD, J

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Date: 25-08-2010

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Svv

Oriental Insurance Company Limited, v. Burugu Appayya

Case brief

What is this about?

What did the court decide?

Oriental Insurance Company Limited, v. Burugu Appayya

Case brief

What is this about?

What did the court decide?

What the court decided

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