Telangana High Court
Laskar Yadagiri Anr vs Pasulu Ramulu 2 Ors on 22 April, 2022
Author: N. Tukaramji
Bench: N. Tukaramji
HONOURABLE SRI JUSTICE N. TUKARAMJI
MACMA.No.1614 of 2007
JUDGMENT:
Aggrieved by the quantum of awarded compensation, the appellants/claimants preferred the appeal against the decree and order dated 29.05.2007 in M.V.O.P.No.456 of 2006 on the file of the Chairman, Motor Accidens Claims Tribunal-cum-IV Additional District and Sessions Judge (Fast Track Court), Siddipet.
2. The brief facts of the case are that on 10.05.2006 at about 4 p.m. while Boodavva/deceased was travelling in an auto bearing No. AP-36-V-6036 (the auto) at the outskirts of Laxmapur village, another auto bearing registration No.AP- 23-U-2821 (crime auto) came from behind and struck the auto which resulted her instantaneous death. The sons of the Boodavva/deceased pleading loss of dependency filed the petition seeking compensation of Rs.4 lakhs.
3. The Tribunal after considering the evidence on record, awarded compensation of Rs.3,20,000/- with interest at 2 NTR,J Macma_1614_2008 7.5% per annum from the date of the petition till the date of realization and the 1st and 3rd respondents/owners of the autos were held liable to pay the same.
4. In the appeal, the appellants contested that the Tribunal erred in exonerating the liability of the 2nd respondent/insurer on the ground that the driver of the vehicle was not in possession of valid and effective driving licence at relevant point of time, though the same is not pleaded and proved. This assumption of the tribunal is contradicting the legal position of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Swaran Singh1. Thus, prayed for properly fixing the liability.
5. The 1st and 3rd respondents remained absent. The 2nd respondent insurer pleaded that the Tribunal had rightly considered the policy violation and absolved its liability. Hence, there is no valid ground for interference.
6. In the above rival claims, the point that arises for determination is:
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(2004) 3 SCC 297 3 NTR,J Macma_1614_2008 "Whether exoneration of liability against the insurer/2nd respondent by the Tribunal is sustainable?"
7. The undisputed facts reveals that the accident occurred as the crime auto dashed the auto from the behind. The F.I.R./Ex.A-1 and charge sheet/Ex.A-2 are disclosing that the accident occurred due to rash and negligent driving of the driver of the crime auto. However, the tribunal by oting the observations in the final report/Ex:A-2 that the driver of the vehicle was not holding driving licence and as charge sheeted for the offence under Section 181 of the Motor Vehicles Act, exonerated the 2nd respondent/insurer.
8. Howsoever, the fact remains that the deceased is third party to the crime auto. It is settled position that in Swaran Singh case (supra cited) held that the burden is always on the insurance company to prove that the driver had no driving licence and that there was breach of policy conditions even in cases where the driver did not possess valid driving licence and breach of policy conditions, pay and recovery can be ordered in case of third parties.
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9. This position is further strengthened in Premkumari v. Prahalad Dev - (2008) 3 SCC 193, Oriental Insurance Company Ltd. v. Brij Mohan (2007) 7 SCC 56, National Insurance Company Ltd. v. V. Laxminarayan Dhut - (2007) 3 SCC 700 and in absolute terms held that even in a case where the driver had no driving licence and the award has been made in respect of third party claim, the insurance company has to pay the amount to the claimants and recover the same from the owner.
10. In the recent judgment in Shamanna and another v. Divisional Manager, Oriental Insurance Company Ltd. and Others {reported in (2018) SCC OnLine SC 849}, the Hon' ble Supreme Court held as under:
"11. In the present case, to deny the benefit of 'pay and recover', what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two- Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover 5 NTR,J Macma_1614_2008 such type of cases and that "if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle". The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case.
12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored."
11. In view of the aforesaid legal position, the insurer/2nd respondent should have been directed to pay the compensation amount and recover the same from the insured.
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12. In effect, the 2nd respondent/insurer is directed to pay the awarded compensation to the appellants/claimants in the first instance, and thereafter recover the said amount from the 3rd respondent without initiating any separate proceedings for recovery. With this direction, this appeal is disposed of. No costs.
As a sequel, miscellaneous petitions, if any, shall stand closed.
___________________ JUSTICE N. TUKARAMJI Date:22.04.2022 CCM