Telangana High Court
The National Insurance Co. Ltd. ... vs A. Chella Rao And 2 Others on 16 March, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No. 2938 of 2008
JUDGMENT:
The National Insurance Company Limited, respondent No. 2 before the Tribunal, preferred this appeal challenging the order and decree, dated 09.01.2007, passed in O.P. No. 650 of 2004 on the file of the XVII Additional Chief Judge-cum-III Additional Metropolitan Sessions Judge, Hyderabad.
The claimants, respondent Nos. 1 & 2 herein, filed the O.P. claiming compensation of Rs.15,00,000/- on account of the death of the deceased-Ambati Subhashini Rao in the motor accident that occurred on 19.01.2004. According to the claimants, on 19.01.2004, at about 7:30 a.m., while the deceased was proceeding on her Scooty bearing No. AP 11M 4597 from Mahaboobnagar crossroads towards Falaknuma flyover, the offending vehicle, i.e., Lorry bearing No. AP 9U 7965, owned by respondent No. 3 herein and insured with the appellant, came from behind in a rash and negligent manner, being driven by its driver, and dashed the Scooty from behind, as a result of which, the deceased fell down and received injuries. The deceased succumbed to the injuries while undergoing treatment in Owaisi Hospital. According to the claimants, the deceased was aged 23 years, drawing a monthly salary of Rs.9,500/- working as Medical Transcriptionist in M/s. DIGI Trans (Pvt.) Ltd., and therefore, they laid a claim for Rs.15.00 lakhs towards compensation. Considering 2 the claim and the counter filed by the Insurance Company and on evaluation of the evidence, both oral and documentary, the learned Tribunal has allowed the O.P. and awarded total compensation of Rs.6,19,360/- with 7.5% interest per annum, holding the owner of the offending vehicle and the insurance company jointly and severally liable to pay the compensation.
Heard the learned Standing Counsel for the appellant and the learned counsel for the claimants-respondent Nos. 1 & 2 herein. Perused the material available on record.
Now, the main contention of the learned Standing Counsel for the appellant is that the appellant-Insurance Company is not liable to pay any compensation inasmuch as the driver of the offending vehicle was possessing only light motor vehicle license i.e., LMV (NT), but he was driving heavy goods vehicle at the relevant time of accident. Thus, as there was breach of terms and conditions of the insurance policy, the learned Tribunal ought not to have fastened liability on the Insurance Company. It is further contended that in the circumstances of the case, the learned Tribunal ought to have directed the Insurance Company to pay the compensation in the first instance and granted liberty to recover the same from the owner of the offending vehicle, for the breach of terms and conditions of the policy.
3
On the other hand, learned counsel appearing for respondent Nos. 1 & 2-claimants, contended that the compensation awarded by the learned Tribunal is just and reasonable and needs no interference by this Court.
The learned Tribunal, while answering issue No. 2, evaluating the evidence adduced by the parties, has observed, at para No. 25, as under:-
"25. ...It is no doubt true, the evidence of R.W.1 and the contents of Ex.X.1 extract of driving license of the driver of the offending lorry would reveal that as on the date of the accident, the driver is not authorized to drive heavy motor vehicle like the offending lorry."
Thus, considering the evidence of R.W.1, and the contents of Ex.X.-1, extract of driving license of the driver of the offending vehicle, the Tribunal has rightly held that the driver of the offending vehicle was not holding valid driving license to drive the offending vehicle at the time of the accident. Even though the Insurance Company issued legal notice to the owner of the offending vehicle, he did not put up appearance opposing the same. Therefore, the finding of the learned Tribunal in fixing the liability jointly and severally upon the insurance company is liable to be set aside. But the fact remains that by the time of accident, the offending vehicle was insured with the appellant and Ex.B.1 policy was very much in force. 4 In the case of third party risks, as per the decision in National 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 case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others2, following its earlier decision in Swaran Singh (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 the result, the M.A.C.M.A. is partly allowed setting aside the finding of the learned Tribunal to the extent of fixing the liability jointly and severally upon the insurance company. However, 1 (2004) 3 SCC 297 2 2018 ACJ 2163 5 following the doctrine 'pay and recover', the appellant-Insurance Company is directed to pay the compensation amount to the claimants-respondent Nos. 1 & 2 herein, if not already deposited, in the first instance and thereafter recover the same from the owner of the offending vehicle i.e., the respondent No. 3 herein without initiating any separate proceedings. No costs.
Miscellaneous petitions, if any pending, shall stand closed.
_____________________ JUSTICE G. SRI DEVI 16.03.2022 tsr 6 THE HON'BLE JUSTICE G. SRI DEVI M.A.C.M.A. No. 2938 of 2008 DATE: 16-03-2022