Telangana High Court
Iffco Tokio General Insurance Company ... vs Nelli Mallesham And 3 Others on 30 June, 2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2979 OF 2014
JUDGMENT:
This appeal is filed by the appellant/IFFCO TOKIO General Insurance Company Limited under Section 173 of the Motor Vehicles Act, aggrieved by the award and decree dated 12.09.2013, passed in O.P. No.140 of 2010 by the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Karimnagar (for short "the Tribunal").
2. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that the petitioners filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.2,00,000/- on account of the death of their daughter Nelli Bhoomika, aged 1 ½ years in a road accident that occurred on 21.07.2009. It is stated that on 21.07.2009 at 7.00 p.m., a blade fitted Tractor bearing No.AP-15- AE-3130, belonging to the 2nd respondent, was driven by the 1st respondent in a rash and negligent manner with high speed and dashed her. Due to which, she had instant death. Hence, the claim petition.
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4. Respondents No.1 and 2, who are driver and owner, filed a counter before the Tribunal denying the allegations in the petition. They mainly contended that the death of the baby was not on account of the alleged accident, but due to her fall on the ground from the terrace of the house of the petitioners while playing along with other kids and the petitioners by managing the police, got registered a false case against the 1st respondent by planting the insured vehicle of 2nd respondent.
5. Respondent No.3 filed a counter denying the allegations made in the claim petition and mainly contended that no liability can be fixed on it, as the driver of the offending vehicle was not having a driving license.
6. To prove their case, the petitioners examined PWs.1 and 2 and got marked Exs.A1 to A5. Respondent No.3 examined RW.1 and got marked Ex.B1 to B7.
7. On appreciation of the evidence on record, the Tribunal allowed the O.P. by awarding compensation of Rs.2,00,000/- as prayed for. Aggrieved by the same, the present appeal has been filed by the Insurance Company.
8. Heard both sides and perused the record.
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9. Learned counsel for the Insurance Company/3rd respondent contended that the Tribunal failed to see that the driver of the insured vehicle was charge-sheeted under Section 181 of M.V. Act for not possessing any diving license and the owner of the offending vehicle violated the conditions of policy since he handed over the vehicle to the driver who had no license at all, and ordered pay and recovery. Accordingly, prayed to allow the appeal.
10. On the other hand, learned Counsel for respondents/petitioners contended that the Tribunal was right in ordering pay and recovery, as such, no interference is required. Accordingly, prayed to dismiss the appeal.
11. A perusal of the record goes to show that the Tribunal while answering issue No.1 whether the accident had occurred due to rash and negligent driving of the offending vehicle bearing No. AP-15-AE-3130, discussed at length and based on the evidence of PW.2/eyewitness and contents of Ex.A1/CC of FIR and Ex.A5/CC of the chargesheet, it rightly came to the conclusion that the accident was on account of rash and negligent driving of the driver of the offending vehicle.
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12. Now, coming to the liability aspect, the Tribunal discussed at length the decisions relied upon by both parties and made it clear under para No.11 at page No.8 of its judgment.
"....... In a strict sense, this Court being a Tribunal has got no powers under M.V. Act to pass the order of pay and recover, but in the interest of justice compelled to order.......".
13. Apart from the above, in the case on hand, there is no dispute that the policy was not in force as on the date of the accident. The Hon'ble Supreme Court in National Insurance Company Limited vs Swaran Singh & others1 and in the catena of decisions, directed the Insurance Company to pay the compensation and liberty is granted to it to recover the paid amount from the owner of the vehicle, in case of violation of conditions of Insurance Policy. In Shamanna V. Divisonal Manager, the Oriental Insurance Co. Ltd.2 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 1 2004 (3) SCC 297 2 2018(9) (SC) 3726 5 RRN,J M.A.C.M.A.No.2979 of 2014 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 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.
13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that "....that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
14. Applying the above decisions to the present case, this Court is of the view that the 3rd respondent/Insurance Company is directed to pay the compensation amount as awarded by the Tribunal to the petitioners at the first 6 RRN,J M.A.C.M.A.No.2979 of 2014 instance and later on recover the same from respondent No.2 as per law.
15. In view of the above, this Court does not find any fault in the impugned order and the appeal is liable to be dismissed.
16. In the result, MACMA No.2979 of 2014 is dismissed by confirming the order dated 12.09.2013, passed in O.P. No.140 of 2010 by the Tribunal. No order as to costs.
As a sequel, miscellaneous petitions, if any are pending, shall stand closed.
______________________________________ NAMAVARAPU RAJESHWAR RAO, J 30th day of June 2023 PRV