Telangana High Court
The New India Assurance Co Ltd., ... vs B Chennamma, Hyderabad 6 Others on 21 June, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.1611 of 2015
JUDGMENT:
This appeal is preferred by the New India Assurance Company Limited, questioning the award and decree, dated 07.05.2015 passed in M.V.O.P.No.2103 of 2013 on the file of the Motor Vehicle Accidents Claims Tribunal-cum-X Additional Chief Judge, City Civil Court, Hyderabad (for short, the Tribunal).
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. The claimants filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.6,00,000/- on account of the death of one Banda Ramaswamy (hereinafter referred to as "the deceased"), who died in a motor vehicle accident that occurred on 10.07.2013. It is stated that on that day the deceased and others were proceeding in Commander Jeep bearing No.AP 22 A 2674 from Kalwakole via Chandrakalu to Peddamudunur and when the jeep reached in front of Government Hospital, the driver of the jeep drove it in a rash and negligent manner at high speed, due to which the deceased fell down on the road from the jeep and received injuries. Immediately after the accident, the deceased was shifted to Government Area Hospital, Nagarkurnool and from there he was 2 GSD, J Macma_1611_2015 shifted to Gandhi Hospital, Hyderabad, where he succumbed to injuries. Since the accident occurred due to the rash and negligent driving of the driver of the Jeep, the claimants filed the aforesaid O.P. against the respondents 1 and 2, who are the owner and insurer of the said Jeep, respectively.
4. Before the Tribunal, the 1st respondent remained ex parte. The 2nd respondent filed counter denying the averments of the claim- petition including the age, avocation and income of the deceased. It is also contended that since the 1st respondent has violated the terms and conditions of the policy, the 2nd respondent is not liable to pay the compensation. It is further stated that the compensation claimed it excessive and prayed to dismiss the claim-petition.
5. Basing on the above pleadings, the following issues are framed before the Tribunal:-
1) Whether the pleaded accident dt. 10.07.2013 at about morning hours was occurred due to rash and negligent driving of the driver of crime vehicle i.e., Jeep bearing No.AP 22 A 2674 and whether the deceased Banda Rama Swamy died in the said accident?
2) Whether the petitioners are entitled for compensation and, if so, to what quantum and whether the crime vehicle was owned by respondent No.1 and insured with respondent No.2 and what is the liability of the respondents?3
GSD, J Macma_1611_2015
3) To what relief?
6. During trial, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked. On behalf of the respondents, R.W.1 was examined and Exs.B1 to B4 were marked.
7. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Jeep and awarded total compensation of Rs.5,22,000/- with interest @ 7.5 % per annum from the date of petition till the date of realization, payable by respondents 1 and 2 jointly and severally. Aggrieved by the said award, the Insurance Company filed the present appeal.
8. The main contention of the learned counsel for the appellant/Insurance Company is that the owner of the offending vehicle has violated the terms and conditions of the Policy by allowing the deceased to travel in the private jeep, the Insurance Company cannot be even fastened with the liability of pay and recovery.
9. Learned Counsel appearing for the claimants would submit that the Tribunal passed a well reasoned order which needs no interference. It is further submitted that although the deceased 4 GSD, J Macma_1611_2015 traveled as un-authorised passenger in violation of terms of Ex.B.1 policy, in view of the benevolence object of the Motor Vehicles Act, even though the liability of insurance company is exonerated, still the insurance company is liable to pay the compensation to the claimants at the first instance and then recover the same from the owner of the offending vehicle.
10. A perusal of the material on record would show that after considering the oral and documentary evidence, the Tribunal has given a categorical finding that the accident occurred due to the rash and negligent driving of the driver of the Jeep and after considering the age, avocation and income of the deceased, the Tribunal has rightly awarded compensation of Rs.5,22,000/-.
11. Insofar as the liability is concerned, as seen from Ex.B.1 policy, the offending vehicle was insured with the 2nd respondent and the policy was in force as on the date of accident. Even as per the evidence on record, the deceased was proceeding in the jeep and he comes under the category of unauthorized passenger and his risk is not covered by the policy. In similar circumstances, in the case of Manuara Khatun v. Rajesh Kr. Singh1, the Hon'ble Supreme Court dealt with the case of gratuitous passengers and held that the 1 (2017) 4 SCC 796 5 GSD, J Macma_1611_2015 claimants are entitled for an order against the insurer to pay the awarded sum to the claimants and then to recover the said amount from the insured in the same proceedings. Further, in a recent judgment in Anu Bhanvara v. Iffco Tokio General Insurance Company Limited2, the Hon'ble Supreme Court dealt with the similar issue by referring its earlier judgments in National Insurance Co. Ltd. V. Baljit Kaur3 and Manuara Khatun (supra) apart from other judgments, invoked the principle of 'pay and recover', in the peculiar facts and circumstances of the case. In Manuara Khatun (supra), the Apex Court at para No. 16 held as under:-
"16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and another (2013 (2) ALD 95 (SC)), wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on fact that since the victim was traveling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view of the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in 2 Laws (SC) 2019 840 3 2004 ACJ 428 6 GSD, J Macma_1611_2015 the same proceedings by applying the principle of 'pay and recover'."
12. In view of the above, the order of the Tribunal to the extent of directing the insurance company to pay the compensation amount is liable to be modified considering the principle "pay and recover". Hence, to that extent, the order of the learned Tribunal is set aside. The Insurance Company shall deposit the compensation amount, as awarded by the learned Tribunal, at the first instance and recover the said amount from respondent No. 1 thereafter.
13. Accordingly, the Motor Accident Civil Miscellaneous Appeal is disposed of.
Miscellaneous petitions pending, if any, shall stand dismissed.
__________________ JUSTICE G. SRI DEVI 21.06.2022 gkv