Telangana High Court
Aliveli Mallareddy vs Surthani Linganna , Chinna Linganna, on 21 July, 2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A No.1413 of 2014
JUDGMENT:
Being not satisfied with the quantum of compensation awarded and the exoneration of the 2nd and 3rd respondents from the liability of paying the compensation vide order and decree dated 21.02.2012 passed in O.P.No.228 of 2008 on the file of the Motor Accident Claims Tribunal-cum-II Additional District Judge, Karimnagar at Jagtial (for short "the Tribunal"), the appellant/petitioner preferred the present appeal.
2. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that on 31.10.2007 the petitioner, who was working in K.D.C.C. Bank at Raikla village, after his work along with his colleague Anumandlu Satyanarayana, was returning home by riding a motorcycle bearing No.AP-15Q-5787. The said Satyanarayana was riding the motorcycle and the petitioner was the pillion rider. When they reached Allipur Village High School at 1.30 p.m, the first respondent was riding his TVS XL motorcycle bearing No.AP-
2 RRN,J MACMA No.1413 of 2014 15-AB-9480 in the opposite direction rashly and at a high speed and as a result, that motorcycle dashed against the motorcycle of the petitioner. In that accident, the petitioner sustained a fracture to his leg. Immediately after the accident, he was admitted to NIMS Hospital, Hyderabad on 01.11.2007 as an inpatient and he underwent surgery on 13.11.2007 and he was discharged on 23.11.2007. He spent Rs.1,00,000/- towards medical treatment and by the date of the accident, the petitioner was getting a monthly income of Rs.7,000/- by working as a paid Secretary of Primary Agricultural Cooperative Society, Allipur village. The accident occurred only on account of the rash and negligent riding of the motorcycle by respondent No.1, and respondents No.1 to 3 being the rider, owner and insurer of the motorcycle are jointly and severally liable to pay the compensation.
4. Before the Tribunal, respondent No.1 filed a counter denying the allegations made in the claim petition. He mainly contended that it was the rider of the motorcycle on which the petitioner was travelling as a pillion rider, who rode the motorcycle rashly and negligently and caused the accident. He further contended that he was holding a valid 3 RRN,J MACMA No.1413 of 2014 driving license and that he lost his driving license at the place of the accident, as such, he gave a complaint in the P.S. Raikal about the loss of his driving licence and hence he could not submit the licence before the Police.
5. Respondents No.2 and 3 together filed a counter denying the allegations made in the claim petition. They mainly contended that the accident occurred only on account of the rash and negligent driving of the petitioner himself. They further contended that respondent No.1 had no driving licence to drive the motorcycle as of the date of the accident.
6. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident had occurred due to rash and negligent driving of the vehicle bearing No.AP-15-AB-
9480 by its driver?
2. Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
3. To what relief?
7. To prove his case, the petitioner got himself examined as PW.1 and the doctor that treated him as PW.2 got marked Exs.A1 to A56. On behalf of respondents Nos.2 and 3, RWs.1 and 2 were examined and got marked Exs.B1 to B5.
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8. After considering the claim and the counter filed by the respondents, and on evaluation of the evidence, both oral and documentary, the Tribunal has answered issue No.1 in favour of the petitioner and the O.P. was partly allowed awarding compensation of Rs.70,000/- with interest at 7.5% per annum payable by the 1st respondent only while dismissing the claim against the 2nd and 3rd respondent-Insurance Companies as the respondent No.1 had no valid driving licence and thereby violated the terms and conditions of the policy. Dissatisfied with the quantum of compensation and also exoneration of respondents No.2 and 3 from their liability, the present appeal has been filed.
9. Heard both sides and perused the record.
10. Learned counsel for the appellant/petitioner mainly contended that the quantum of compensation awarded by the Tribunal is on the lower side even though the petitioner produced the oral and documentary evidence for proving expenditure and seeks enhancement of the same as the petitioner had taken treatment for a considerable period and no amount was awarded under the head "transportation charges"
and "injuries." He further contended that the Tribunal ought to 5 RRN,J MACMA No.1413 of 2014 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 the owner of the offending vehicle.
11. Learned counsel for respondents No.2 and 3/Insurance Companies contended that the Tribunal was justified in dismissing the claim against them as the first respondent did not produce his driving licence even after issuance of legal notice under Ex.B4. Accordingly, prayed to dismiss the appeal.
12. A perusal of the impugned order goes to show that the petitioner was getting a monthly income of Rs.7,000/- by working as a paid Secretary of Primary Agricultural Cooperative Society, Allipur village, but the Tribunal considered the monthly income of the petitioner at Rs.6,000/- as he failed to produce any documentary evidence. There is no dispute with regard to the avocation of the petitioner. Hence, this Court is inclined to enhance the monthly income of the petitioner at Rs.7,000/- per month (under the changed circumstances) and 6 RRN,J MACMA No.1413 of 2014 hence the petitioner is entitled to Rs.14,000/- towards loss of earnings.
13. Coming to the medical expenses, the petitioner filed Ex.A11 to A54 and Ex.A56 medical bills, and among them, Ex.A45 for Rs.55,000/- is estimation certificate and so the Tribunal did not consider the same and approximately awarded Rs.25,000/- only, whereas the total of Ex.13, Ex.A14, Ex.A15, Ex.A25, Ex.A44 comes to Rs.28,652/-. Based on the exhibits, the compensation under the head 'medical expenses' is modified. Hence, the petitioner is awarded a sum of Rs.28,562/-.
14. Learned counsel for petitioner had contended that no amount was awarded under the heads "transportation charges" and "injuries." A perusal of the impugned order goes to show that the petitioner was admitted to the Hospital for treatment on 01.11.2007 and was discharged on 26.11.2007 on account of the injuries. The Tribunal did not award compensation for the injuries hence the petitioner is awarded Rs.6,000/- towards injuries sustained by him. It is also observed that the petitioner was not awarded compensation under "transportation charges." Hence, the petitioner is 7 RRN,J MACMA No.1413 of 2014 awarded Rs.5,000/- towards transportation charges. The Tribunal was justified in awarding compensation under the other heads i.e. extra nourishment, for future medical expenses and pain suffering. In all, the petitioner is entitled to Rs.86,562/- (Rs. Eighty six thousand, five hundred and sixty two only).
15. Upon bare reading of the impugned order, it is observed that the Tribunal found that the 2nd and 3rd respondents/Insurance Companies are not liable to pay compensation as the rider of the motorcycle was not holding a driving licence. In the case on hand, there is no dispute that the policy was not in force as of the date of the accident. In view of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs Swaran Singh & others1 and the judgment of the Hon'ble Supreme Court in Shamanna V. Divisional Manager, the Oriental Insurance Co. Ltd.2, 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 was granted to it to recover the paid amount from the owner of the vehicle, in case of violation of 1 2004 (3) SCC 297 2 2018(9) (SC) 3726 8 RRN,J MACMA No.1413 of 2014 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
9 RRN,J MACMA No.1413 of 2014 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."
16. Applying the above decisions to the present case, this Court is of the view that the 2nd and 3rd respondents/Insurance Companies can be directed to pay the compensation amount to 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.
17. In view of the foregoing reasons, this appeal deserves to be allowed in part.
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18. Accordingly, the M.A.C.M.A. is allowed in part by enhancing the compensation amount of Rs.70,000/- to Rs.86,562/- (Rs. Eighty six thousand, five hundred and sixty two only) with costs and interest at 7.5% from the date of petition till the date of realisation. Respondents No.2 and 3 are directed to deposit the above said amount along with interest and costs within two months from the date of receipt of a copy of this judgment. The petitioner is permitted to withdraw the entire amount upon such deposit. The 2nd and 3rd respondents/Insurance Companies are 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 21st day of July 2023 BDR/PRV