Telangana High Court
Yalamala Ramakrishna, Khammam ... vs T. Venkateswarlu And Anr, Krishna ... on 13 June, 2023
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No.120 OF 2014
JUDGMENT:
1. This Motor Accidents Civil Miscellaneous Appeal is filed aggrieved by the judgment dated 28.01.2009 in M.A.T.O.P. No.806 of 2006, passed by the Motor Accidents Claims Tribunal- cum-IV Additional District Judge (F.T.C), Khammam (for short 'the Tribunal') disputing the quantum of compensation awarded by the Tribunal.
2. The appellant herein is the claimant in the aforesaid OP.
3. Heard Sri. Brahmaiah Chowdary, learned counsel for the appellant and Sri. A. Ramakrishna Reddy learned Standing Counsel appearing for Respondent No.2.
4. The brief facts of the case are that on 17.10.2005 at 9.30 a.m. the appellant and few others were travelling from Makkapeta Village in the auto bearing No.AP-TU-2615. The driver of the auto one Mr. Yarlagadda Gopi drove the auto in a rash and negligent manner, due to which the auto overturned. As a result of the crash the appellant suffered from a bandaged wound to his forehead, bandaged wound on his right arm, abrasion on upper lip, 2 hemorrhagic contusion over temporal parietal cerebral hemisphere, and fracture over left temporal and parietal bone. He was initially treated at the Government Hospital, Jaggaipet, as in patient for one day, before being shifted to Mamatha General Hospital Khammam, where he received treatment for one month. Claiming that he had lost one academic year due to the accident, the Appellant had filed the subject OP seeking a compensation of Rs.2,00,000/-.
5. The Tribunal on considering the oral and documentary evidence on record, had held that the accident had occurred due to the rash and negligent driving of the auto driver. Further, the Tribunal also held that since claims pertained to claims other than third party claims the principle of 'pay and recover' would not apply to the Respondent No.2 insurer herein. Thus, the Tribunal allowed the OP in part, directing the Respondent No.1 herein to pay total compensation of Rs.88,000/- along with proportionate costs and interest @ 7.5% p.a. from the date of petition till the date of deposit.
6. The present appeal is preferred aggrieved by the said order.
7. The present appeal was dismissed for default against the Respondent No.1 herein, by this court vide its conditional order 3 dated 14.02.2013, as the appellant had failed to deposit fresh batta for serving personal notice on the Respondent No.1. Thus, the question falling for consideration is with regard to the applicability of the principle of 'pay and recover' against the Respondent No.2 insurer.
8. Learned Standing Counsel appearing for the Respondent No.2 contended that appellant was a passenger in a transport vehicle, as such the principle of 'pay and recover' cannot be enforced against the insurer.
9. I have taken note of their respective contentions.
10. The Respondent No.1 herein who is the owner of the vehicle remained ex-parte before the Tribunal.
11. A perusal of the B register of offending auto marked as Ex.B-3 shows the seating capacity of the vehicle as 4. The insurance policy marked as Ex.B-1 was also issued for passenger carrying commercial vehicle. These documents establish that the offending vehicle was authorized and insured to carry passengers commercially. The contention of the Respondent No.2 that the offending auto was a transport vehicle apart from being contrary to the evidence on record, cannot be accepted at the appellate stage 4 without having pleaded or led evidence to that effect before the Tribunal.
12. Further, though the Respondent No.2 in their counter before the Tribunal contended that, the offending vehicle was carrying 10 persons at the time of the accident and overturned due to overweight, no independent eye-witness was examined to prove their case. Thus, the Respondent No.2 failed to establish the defense raised by them.
13. From the counter of the Respondent No.2 and evidence of RW-1 i.e., the branch manager of Respondent No.2, it can be learnt that the Respondent No.2 herein primarily alleged that the driver of the offending auto did not possess a valid driving license as he was only authorized to drive Light Motor Vehicles - non transport and that the license did not bear any transport endorsement.
14. The Tribunal accepted their contention that the Respondent No.1 breached the conditions of the insurance policy. Further, the Tribunal while placing reliance on the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, held that pay and recover could not be applied as the appellant herein was falling outside the category of third parties since he was travelling in the vehicle.
5
15. The Tribunal erred in holding so, as an authorized passenger travelling in public transport/passenger carrying vehicle cannot be considered a party to the insurance policy, as he is not a representative of the owner of the vehicle. Further, a contract of insurance only contemplates the incidence of liability, since the liability to indemnify an injured passenger cannot be shifted on the said passenger, he is a third party to the insurance. In other words, although the policy covers damages caused to a passenger, he is a third party claiming against the owner for the damage caused to him by the insured vehicle. Thereby the Respondent No.2 is bound to satisfy the decree passed by the Tribunal under section 149 of the Act, 1988. The Tribunal erred in placing reliance on Laxmi Narain Dhut's case (supra), as in that case the claimant was the owner of the vehicle and thus, he naturally cannot be considered a third party to the insurance.
16. Further, it is pertinent to note that the Respondent No.2 had neither pleaded nor led evidence that the appellant boarded the offending auto gratuitously without paying hire charges. Thus, this Court is of the view that the Respondent No.2 is bound to satisfy the claim of the appellant.
6
17. So far as the contention of the respondents that the driver of the vehicle did not hold a valid driving license is concerned, the High Court of Andhra Pradesh in Aripaka Suryanarayanacharyulu Vs. Pinisetti Srinivas and Ors1, held that transport endorsement was not necessary to drive an auto. The relevant observations are as under:
"15. In a decision of Hon'ble Supreme Court of India in Mukund Dewangan Vs. Oriental insurance Company Limited MANU/SC/0797/2017 : 2017 SAR (Civil) 1008 held that 'Light Motor Vehicle' as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not exclude from the definition of the light motor vehicle by virtue of Amended Act No. 54/1994.
The Hon'ble Supreme Court of India further held that:
The effect of the amendment made by virtue of Act.54/1994 w.e.f., 14-11-1994 while substituting classes (e) to (h) of Section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f) , heavy goods vehicle in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the afore said substituted classes only. It does not exclude transport vehicle, from the purview of section 10(20)(e) and section 2(41) of the Act i.e., light motor vehicle.
The Hon'ble Supreme Court of India further held that:
The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle"
continuous to be the same as it was and has been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle or such class without any endorsement to that effect." Therefore, in view of the above decision of the Hon'ble Supreme Court of India, the driving licence of 1st respondent is sufficient to drive the crime vehicle/auto and transport endorsement is not required. Therefore, objection taken by the 3rd respondent/ Insurance Company cannot be accepted.
1 6 . Here with regard to the transport and non-transport driving licence, the Government of India addressed a letter to all the Principal Secretaries and 1 MANU/AP/0679/2023 7 DGP's of all the State Governments vide letter dated 16.04.2018 vide RT- 11021/44/2017-MVL. In the said letter, the Government of India clearly stated that in compliance of the judgment dated 03.07.2017 of the Hon'ble Supreme Court of India in Civil Appeal No. 5826 of 2011 in Mukund Dewangan Vs. Oriental Insurance Company Limited:
In view of the legal position as settled by the Hon'ble Supreme Court in the above Judgment, the requirement under Motor Vehicles Act, 1988 to obtain the transport licence would arise in case of medium/heavy goods and passenger vehicles only. No other vehicle will require any separate endorsement, even if they are used for commercial purposes. The exemption from the requirement to obtain the endorsement for commercial vehicles would apply to following vehicles:
i. Motor cycle without gear ii. Motor cycle with gear iii. Light Motor Vehicle (goods/passenger) iv. e-rickshaw/e-cart Therefore, in view of the above reasons, the first respondent is having valid and effective driving licence to drive the crime vehicle/ auto on the date of accident. Since the crime vehicle is insured with the third respondent/Insurance Company, the third respondent/ Insurance company is also liable to pay the compensation."
This court is in agreement with the view expressed by the Andhra Pradesh High Court.
18. Further the Supreme Court in S. Iyyapan vs. United India Insurance Company Ltd. and Ors2, observing that Section 149 of the Act,1988 includes passengers travelling in a commercial vehicle, held that the insurer cannot escape his liability by raising a defense that the driving license of the driver did not have a commercial endorsement. The relevant endorsement is an under:
"18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the 2 (2013)7SCC62 8 grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence.
Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside."
19. Thus, in light of the above enunciated position of law, this court is of the view that Respondent No.2 is liable to pay compensation to the appellant.
20. Further, it is pertinent to note that the appellant was a student aged about 17 years, at the time of accident pursuing Intermediate 1st year. Due to the accident the Appellant suffered from a fracture to his skull i.e., (left temporal and parietal bone) and was unable to continue his education for one academic year. The agony caused to a student from losing an academic year cannot be quantified as it may have negative implications on his future. It is also pertinent to note that the appellant would have lost the amount paid by him for 9 the said academic year to the concerned educational institution. Therefore, this court is of the view that the damages awarded for pain and suffering are inadequate and warrants an enhancement.
21. Therefore, the compensation awarded to the Appellant is thus, modified as under:
Head of Compensation Enhancement by this
Compensation awarded by the Court
Tribunal Amount (in Rupees)
Amount (in
Rupees)
Medical Expenses 42,000/- 42,000/-
and hospital charges
Attendant Charges - 5,000/-
and Transport
Charges
Damages for pain, 46,000/- 1,00,000/-
suffering and trauma
Extra Nourishment - 5,000/-
TOTAL 88,000/- 1,52,000/-
22. Accordingly, this Motor Accident Civil Miscellaneous Appeal is partly allowed. The compensation awarded by the Tribunal is enhanced from Rs.88,000/- to Rs.1,52,000/- with an interest of 7.5% per annum from the date of the petition till realization. The Respondent No.2 herein is directed to pay the compensation as awarded by this Court to the Appellant. On such 10 deposit, the Appellant is permitted to withdraw the enhanced compensation along with interest accrued.
23. Pending miscellaneous petitions if any, shall stand closed. No order as to costs.
______________________ T. VINOD KUMAR, J Date: 13.06.2023 MRKR/VSV 11 THE HON'BLE SRI JUSTICE T. VINOD KUMAR M.A.C.M.A. No. 120 of 2014 13.6.2023 MRKR/VSV