Telangana High Court
Reliance General Insurance Co Ltd vs Malyala Vajra Vajramma 5 Ors on 12 July, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.2347 of 2017
JUDGMENT:(Per Hon'ble Justice G. Sridevi) This appeal is filed under Section 173 of Motor Vehicles Act, aggrieved by the order and decree, dated 01.06.2017 passed in M.V.O.P.No.450 of 2014 on the file of the Principal Motor Accidents Claims Tribunal, Warangal (for short "the Tribunal").
2. For the sake of convenience, the parties will be hereinafter referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the petitioners/claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.83,91,468/- for the death of one Malyala Lachaiah (hereinafter referred to as "the deceased"), who died in a motor vehicle accident. It is stated that on 23.04.2014, the deceased left the house on his Honda Shine Motorcycle bearing No.AP 36 X 0347 for purchase of vegetables and on the way when he reached in front of Akshara 2 GSD, J and MGP, J Macma_2347_2017 Junior College, Jawahar Nagar Colony, Bhupalpally, the driver of DCM Van bearing No.AP 01 W 4788 driven by its driver in a rash and negligent manner at high speed and dashed against the bike of the deceased, due to which, the deceased fell down, sustained fatal injuries and died on the spot. On a complaint a case in Crime No.97 of 2014 of P.S. Bhupalpally, has been registered against the driver of the DCM Van. It is also stated that prior to the accident, the deceased was aged about 41 years and was earning Rs.44,775/- per month as a Coal Cutter in KTK-5 Incline, Singareni Colleries Company Limited, Bhupalpally and due to untimely death of the deceased, the petitioners have lost their source of income. Since the accident occurred only due to the rash and negligent driving of the driver of the DCM Van, the claimants filed the aforesaid O.P.
4. Before the Tribunal, the 1st respondent remained ex parte.
5. The 2nd respondent filed counter putting the claimants to strict proof of all the allegations and it was specifically contended that there was no negligence on the part of the 3 GSD, J and MGP, J Macma_2347_2017 driver of the DCM Van and the accident occurred only due to the negligence of the deceased and as such, the 2nd respondent is not liable to pay compensation and prayed to dismiss the claim- petition.
6. Basing on the above pleadings, the Tribunal framed the following issues:-
1. Whether the accident occurred on account of rash and negligent driving of DCM Van No.AP 01 W 4788?
2. Whether the petitioners are entitled for compensation to the extent claimed against the respondents and if they are liable to satisfy the claim of the petitioners jointly and severally?
3. To what relief?
7. On behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B1 to B4 were marked.
8. After considering the oral and documentary evidence available on record, the Tribunal held that the accident was occurred due to the rash and negligent driving of the driver of the DCM Van and accordingly awarded an amount of Rs.69,93,594/- with interest @ 7.5% per annum from the date of 4 GSD, J and MGP, J Macma_2347_2017 petition till the date of realization. It is further held that the 2nd respondent i.e., appellant herein is directed to pay the said compensation to the claimants and then recover the same from the original insured i.e., 3rd respondent. Challenging the same, the present appeal came to be filed by the Insurance Company.
9. Heard and perused the record.
10. A perusal of the impugned order would show that the Tribunal has framed Issue No.1 as to whether the accident occurred on account of rash and negligent driving of DCM Van No.AP 01 W 4788, to which the Tribunal after considering the evidence of P.W.2 coupled with Ex.A4-charge sheet, has categorically observed that the accident has occurred due to the rash and negligent driving of the driver of the DCM Van and has answered in favour of the petitioners and against the respondents. Therefore, we see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of DCM Van.
11. Insofar as the quantum of compensation is concerned, considering Ex.A5-Pay slip and after deducting the income tax, 5 GSD, J and MGP, J Macma_2347_2017 the Tribunal has rightly taken the income of the deceased at Rs.41,322/- per month and also taking into consideration the age and avocation of the deceased, the Tribunal added 30% of the future prospects and deducted 1/4th amount and applying multiplier at '14' the Tribunal has awarded Rs.69,93,594/- together with interest at 7.5% per annum. Therefore, we see no reason to interfere with the quantum of compensation awarded by the Tribunal.
12. Insofar as the liability is concerned, admittedly, as seen from Ex.B2-driving licence extract, the driver of the DCM Van was authorized to drive Transport Vehicles from 05.12.2014 to 14.02.2017 and the accident occurred on 23.04.2014 and therefore, there is breach of terms and conditions of the Insurance Policy as rightly contended by the learned Standing Counsel for the Insurance company. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.4 policy was very much in force. In the case of third party risks, as per the decision in National 6 GSD, J and MGP, J Macma_2347_2017 Insurance Company Ltd. V. Swaran Singh and others1, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Recently, the Apex Court in the case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others2, following its earlier decision in Swaran Singh (1 supra), reiterated that "even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount." In view of the above, the Tribunal has rightly directed the appellant to pay the compensation amount at the 1 (2004) 3 SCC 297 2 2018 ACJ 2163 7 GSD, J and MGP, J Macma_2347_2017 first instance and then recover the same from the 3rd respondent-owner of the vehicle. No ground is made out by the learned counsel for the appellant to interfere with the well reasoned order passed by the learned Tribunal. Hence, the M.A.C.M.A. is devoid of merits and the same is liable to be dismissed.
13. Accordingly, the M.A.C.M.A. is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
____________ G. SRI DEVI, J _______________________ SMT. M.G.PRIYADARSINI, J 12.07.2022 gkv