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2007 DIGILAW 637 (AP)

Mandapati Sambasiva Rao v. T. Srinivasa Rao

2007-07-11

G.CHANDRAIAH

body2007
JUDGMENT Heard both the counsel. 2. Since the issue involved in all these appeals and the accident in question is one and the same, they are being disposed of by this common judgment. 3. All these appeals are filed against the orders dated 16-3-1999 passed by the Motor Vehicle Accidents Claims Tribunal, Guntur in M.V.O.P. Nos. 520, 521,522,523 and 524 of 1996 respectively. The claimants are the appellants. 4. There is no dispute that on 14-3-1996 at about 12.00 mid night when the deceased in O.P. Nos. 522 and 523 of 1996 and the claimants in other O.Ps were travelling in the jeep bearing No. ADH 1899 along with others from Babbepalli village in Prakasam District to go to Narsaraopet town, at about 1.45 a.m. on 15-3-1996 when the jeep came near Vinayaka Temple at Kavuru Lingamguntla village, due to the rash and negligent driving of the driver of the jeep in high speed, it dashed the oil tanker which was stationed on the road margin and as a result, the deceased in O.P. Nos. 522 and 523 of 1996 died and the other claimants sustained injuries and the Tribunal considering the evidence both oral and documentary, recorded finding of fact that the accident occurred due to the rash and negligent driving of the driver of the jeep. 5. Considering the evidence led by the parties, the Tribunal awarded compensation in the respective claim petitions and the said issue is also not in dispute. 6. The only dispute is with regard to the liability. As the driver who drove the jeep involved in the accident was not having badge to drive the heavy vehicle as on the date of the accident, and further as the jeep was carrying 12 persons though its capacity is• six including the driver as per the policy, the Tribunal held that there is clear violation of the policy conditions and accordingly exonerated the insurance company from paying compensation and fastened the liability on the owner of the vehicle. 7. The learned counsel appearing for the claimants/appellants contended that the deceased and the injured in the respective claim petitions are the third parties and the Tribunal is not justified in exonerating the insurance company. In the alternative, relying on the judgments reported in National Insurance Co. Ltd. v. Swaran Singh1 and New India Assurance Co. 7. The learned counsel appearing for the claimants/appellants contended that the deceased and the injured in the respective claim petitions are the third parties and the Tribunal is not justified in exonerating the insurance company. In the alternative, relying on the judgments reported in National Insurance Co. Ltd. v. Swaran Singh1 and New India Assurance Co. Ltd. v. Kamala2 he submitted that though there is violation of the policy conditions, the insurer may be directed to first pay the compensation and then recover the same from the owner. He further submitted that the Tribunal below erred in exonerating the insurer on the ground that travelling 12 passengers in the jeep, which is meant for six persons amounts to violation of the policy conditions. He submitted that travelling of twelve persons was not the cause for the accident and the accident was caused due to the rash and negligent driving of the driver of the vehicle and, therefore, he submitted that travelling of twelve persons dues not constitute violation of the policy conditions. In support of this contention, he relied on the judgment of the Apex Court reported in B. V. Nagaraju v. Oriental Insurance Co. Ltd.3 and also on the judgments of the High Court of Madhya Pradesh in New India Assurance Co. Ltd. v. Ratibaf and United India Insurance Co. Ltd. v. Annapurna Shandilya5. With these submissions, he sought for setting aside the impugned orders of the Tribunal. 8. On the other hand, the learned counsel appearing for the insurance company submitted that the driver was not having valid licence to drive the vehicle and this itself constitute violation of the policy conditions, apart from the offending vehicle carrying 12 persons though its capacity was 6 and hence, the Tribunal rightly considering these aspects has exonerated the insurance company and hence when it has no liability, it cannot be directed to first pay and then recover the same from the owner. With this submission, he sought for dismissal of the appeals. 9. In view of the above rival contentions, the points that arise for my consideration are: 1. Whether the insurance company can be exempted from paying compensation on the ground that more persons travelled in the offending vehicle than the persons covered in the policy? 2. With this submission, he sought for dismissal of the appeals. 9. In view of the above rival contentions, the points that arise for my consideration are: 1. Whether the insurance company can be exempted from paying compensation on the ground that more persons travelled in the offending vehicle than the persons covered in the policy? 2. Whether the insurance company is \ liable to pay compensation if the I driver who caused the accident, dues not possess the requisite valid licence? 10. In order to consider the issue No.1, it is necessary to note the case of claimants and the evidence available on record. The case of the claimants is that when they were travelling along with others on 14-3-1996 at about 12-00 (mid night) in the jeep bearing No. ADH 1899 from Babbepalli village in Prakasam District to go to Narasaraopet town, at about 1.45 a.m. on 15-3-1996 near Vinayaka Temple at Kavuru Lingamguntla village, the jeep dashed the oil tanker which was stationed on the road margin and as a result six persons died on the spot and others sustained injuries. The Tribunal considering the oral evidence coupled with F.I.R. and the charge sheet, concluded that the accident occurred due to the rash and negligent driving of the driver of the jeep. There is no evidence or any suggestion to the witnesses that the accident occurred due to the overloading of the jeep. In these circumstances, when the cause of the accident was due to the rash and negligent driving of the driver of the jeep and as there is no evidence to show that overloading contributed to the accident, it cannot be said that it is a fundamental breach exonerating the insurance company from paying any compensation. The Apex Court in the decision reported in B. V. Nagaraju's case (3 supra) considering the circumstance where more persons than permitted limit were travelled in the goods vehicle, which met with the accident, held that the same is not so fundamental a breach so as to afford ground to the insurer to eschew liability altogether. The relevant portion is extracted as under for better appreciation: "7. It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. The relevant portion is extracted as under for better appreciation: "7. It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the power, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident.... Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident......." 11. Therefore, in view of the above judgment of the Apex Court (3 supra) and having regard to the fact that travelling more passengers than permitted did not contribute to the accident and the accident was caused due to the rash and negligent driving of the driver of the offending jeep, it cannot be said that the insurance company is exempted from its liability and the issue is answered in the negative and in favor of the claimants. However, this issue is subject to the second issue. 12. The second issue is no longer res integra in view of the judgment of the Apex Court in Swaran Singh's case (1 supra) wherein it was held that if the driver of the offending vehicle does not possess valid licence, the insurer is not liable to pay compensation, but however it shall first pay the compensation and then recover the same from the owner of the vehicle. Similar view was expressed by a Division Bench of the Kerala High Court in Sulochana v. Chandran. Similar view was expressed by a Division Bench of the Kerala High Court in Sulochana v. Chandran. In the present case, the deceased who died in the accident and the injured, are third parties and hence, as per the judgments of the Apex Court cited 1 and 2 supra and also in view of the Division Bench judgment of the Kerala High Court (6 supra), though the insurance company is not liable to pay the compensation, as the driver who drove the jeep was not having valid licence, in view of the facts and circumstances of the case, it shall first pay the compensation and then recover the same from the owner as per the procedure prescribed by the Apex Court in Oriental Insurance Co. Ltd. v. Nanjappad. Hence the issue is answered in the affirmative and in view of the above facts and circumstances and the judgments of the Apex Court as stated above, it shall first pay the compensation as determined by the Tribunal below and then recover the same from the owner. 13. With the above direction, the appeals are disposed of. No costs.