Telangana High Court
Nimmani Naga Chary, Khammam Dist And Anr vs R Srinivasa Rao, Khammam Dist And Anr on 9 June, 2023
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MACMA No.3400 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A No.3400 of 2014
JUDGMENT:
Being not satisfied with the quantum of compensation awarded in the order and decree dated 25.06.2014 passed in M.A.T.O.P.No.130 of 2011 on the file of the Motor Accident Claims Tribunal-cum-II Additional District Judge (FTC-I), Khammam (for short "the Tribunal"), the appellant-2nd claimant preferred the present appeal seeking enhancement of the compensation.
2. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
3. The facts, in issue, are as under:
Initially, petitioner No.1 (hereinafter referred to as "the injured") filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a road accident that occurred on 09.02.2008. It is stated that on 09.02.2008 while the injured was proceeding to field on a Tractor-Trailer bearing No.AP-20T-
3381 and 3382 and when the Tractor reached near
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MACMA No.3400 of 2014
Perikasingaram Village, the driver of the Tractor drove the same in a rash and negligent manner, due to which, the tractor and trailor turned turtle. As a result, the injured sustained injuries and admitted in Shiva Orthopedic Hospital, Khammam, and he took treatment as inpatient and an operation was conducted. During pendency of the claim-
petition, in view of death of petitioner No.1/injured, petitioner No.2, who is the wife of the injured, came on record as legal representative of the injured vide orders in I.A.No.1966 of 2012, dated 04.02.2012.
4. Before the Tribunal, respondent No.1 remained ex parte. Respondent No.2 filed counter denying the allegations in the claim petition. They mainly contended that the claim- petitioner was unauthorized passengers as he was travelling on a goods Trailor, as such, they are not liable. Accordingly, prayed to dismiss the claim petition.
5. To prove his case, the injured himself as PW.1 and got marked Exs.A1 to A8. On behalf of respondent No.2 RWs.1 and 2 were examined and got marked Exs.B1 to B5.
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6. After considering the claim and the counter filed by the respondents, and on evaluation of the evidence, both oral and documentary, the Tribunal has partly allowed the O.P. and awarded compensation of Rs.1,22,882/- with interest at 7.5% per annum payable by the 1st respondent only while dismissing the claim against the 2nd respondent-Insurance company as there is breach of policy conditions. Dissatisfied with the quantum of compensation and also exonerating the 2nd respondent from its liability, the present appeal has been filed.
7. Heard both sides and perused the record.
8. Learned counsel for the appellant mainly contended that the quantum of compensation awarded by the Tribunal is on lower side and seeks enhancement of the same as the injured had taken treatment for a considerable period and the wife of the injured had spent huge amount for his treatment. He further contended that the Tribunal ought to have considered that even if there is any violation of policy terms and conditions committed by the owner of the vehicle, the Tribunal ought to have directed the Insurance Company initially to pay the compensation to the 3rd parties and to recover the same from 4 RRN,J MACMA No.3400 of 2014 the owner of the offending vehicle. He relied upon the judgment of Hon'ble Supreme Court in National Insurance Company Limited vs Swaran Singh & others.1 He also relied upon the judgment of the Hon'ble Supreme Court in Shamanna V. Divisonal Manager, the Oriental Insurance Co. Ltd.2
9. Learned counsel for respondents No.2/Insurance Companies contended that as per Ex.B2, B4 and B5/RC extract of the vehicle, it is a goods vehicle and the injured, being unauthorised passenger, cannot travel in the Tractor wherein the travel capacity of the tractor is only one, and the Tribunal was justified in dismissing the claim against them. Accordingly, prayed to dismiss the appeal.
10. Upon bare reading of the impugned order, it is observed that the Tribunal found that the 2nd respondent/Insurance Company is not liable to pay compensation as the tractor capacity is one and the injured was travelling on the Tractor to go for cutting of sugarcane and not as an employee. In the case on hand, there is no dispute that the policy was not in 1 2004 (3) SCC 297 2 2018(9) (SC) 3726 5 RRN,J MACMA No.3400 of 2014 force as on the date of accident. The Hon'ble Supreme Court in Swaran Singh (supra) 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 (supra) 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 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."
11. Applying the above decisions to the present case, this Court is of the view that the 2nd respondent/Insurance Company can be directed to pay the compensation amount to 6 RRN,J MACMA No.3400 of 2014 the appellant/petitioner and recover the same from the respondent No.1 as it is established that the policy issued by the 2nd respondent in favour of the 1st respondent was very much in force as on the date of the accident.
12. With regard to the quantum of compensation, this Court finds no reason to enhance the same as there is no compelling evidence adduced by the petitioner to prove that she is entitled to higher compensation. As such, the Tribunal was justified in awarding Rs.1,22,882/- to the petitioner.
13. In view of the foregoing reasons, this appeal deserves to be disposed of, however, without interfering with the quantum of compensation.
14. Accordingly, the M.A.C.M.A. is disposed of by modifying the order of the Tribunal in M.A.T.O.P. No.130 of 2011 dt. 25.06.2014 directing the 2nd respondent/Insurance Company to pay the compensation amount of Rs.1,22,882/- (Rs. One lakh, twenty two thousand, eight hundred and eighty two only) with costs and interest at 7.5% from the date of petition till the date of realisation within two months from the date of receipt of a copy of this judgment. The petitioner is permitted to 7 RRN,J MACMA No.3400 of 2014 withdraw the entire amount upon such deposit. The 2nd respondent/Insurance Company is at liberty to recover the amount from the 1st respondent/owner of the vehicle in accordance with law. There shall be no order as to costs.
As a sequel of which, miscellaneous petitions, if any pending, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 09th June, 2023 PRV