New India Assurance Company Limited, Rep. by its Branch Manager v. Karam Dhanalakshmi
2012-11-28
B.CHANDRA KUMAR
body2012
DigiLaw.ai
Judgment : This appeal is filed by the appellant/insurance company challenging the award dated 16.8.2011 passed by the Motor Vehicle Accidents Claims Tribunal-cum-II Additional District Judge (Fast Track Court), Khammam, directing the insurance company to pay the compensation to the claimants in the O.P.No.356 of 2009 and to recover the same from the owner of the vehicle, i.e., 5th respondent herein (first respondent therein). 2. The parties will be referred to as arrayed in the Original Petition for the sake of convenience. 3. The husband of the first claimant late K.Rama Rao (herein after referred to as the ‘deceased’) met with an accident on 19.4.2008. The second claimant is the daughter and the claimants 3 and 4 are the father and mother of the deceased respectively. The 1st respondent is the owner of the Auto bearing No. AP 20W 5614, the 2nd respondent is the insurance company of the said auto. The 3rd respondent is the owner of the auto bearing AP 20X 7602 and the 4th respondent is the insurance company of the said auto. 4. On 19.4.2008, the deceased along with others boarded the auto of the third respondent i.e., AP 20X 7602 at Rajupeta to go to Manuguru. When the said auto reached near Chegarasala village, it is alleged that the driver of the said auto drove the same in a rash and negligent manner and the driver of the Auto bearing No. AP 20W 5614 has also drove the vehicle in a rash and negligent manner at high speed and consequently there was a collision and that the deceased died in the accident. On appreciation of evidence on both sides, the Tribunal came to the conclusion that the accident had occurred due to rash and negligent driving of the driver of the auto bearing No. AP 20W 5614. The said finding is not in dispute in this appeal. Therefore, there is no need to discuss other evidence in this case. Similarly, the amount awarded to the claimant is also not in dispute. 5. The only point argued by the learned counsel for the appellant is that since the driver of the offending vehicle was a minor and he had no driving licence, the Tribunal ought not to have ordered for recovery. He relies on the judgment in a case of Oriental Insurance Co.
5. The only point argued by the learned counsel for the appellant is that since the driver of the offending vehicle was a minor and he had no driving licence, the Tribunal ought not to have ordered for recovery. He relies on the judgment in a case of Oriental Insurance Co. Ltd, v. Nanjappan (AIR 2004 Supreme Court 1630(1) wherein it is observed as follows: “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. Before release of the amount the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default, it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.” Relying on the above said judgment, the learned counsel for the appellant submits that before release of the amount, the owner of the vehicle shall be issued a notice and he shall be required to furnish security for their entire amount, which the insurer will pay to the claimants. 6. Learned counsel for the claimants relied in a case of Jawahar Singh v. Bala Jain (2011) 6 Supreme Court Cases 425) wherein it is observed that: “The Delhi High Court held that Jatin was a minor on the date of the accident and was riding the motorcycle in violation of the provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder.
The High Court also relied on the evidence of P.W.8, who has deposed in clear and in no uncertain terms that the accident had occurred due to the rash and negligent driving of the motor cycle by Jatin. No suggestion was given to the said witness (P.W.8) that the accident did not take place on account of rash and negligent driving on the part of Jatin.” In that case, the rider of the motorcycle was a minor. It was argued on behalf of the insurance company that at the time of accident, the motor cycle was being driven in breach of terms and conditions of the insurance policy and therefore, the insurance company could not be held liable for making payment of compensation. It is also argued that the rider of the motorcycle was not having valid driving licence. The Apex Court referred to the Judgments in Ishwar Chandra v. Oriental Insurance Co. Ltd., (2007) 10 SCC 650 : (2008) 1 SCC (Cri) 591: (2007) 3 AD 753(SC), National Insurance Co. Ltd. V. Gh. Mohd.Wani ( 2004 ACJ 1424 (J&K) and National Insurance Co. Ltd. V. Gadigewwa ( 2005 ACJ 40 (Kant) and held that the driver of the offending vehicle did not have valid driving licence, then the insurance company, after paying the compensation to the claimants, entitled to recover the same from the owner of the vehicle. Since, the decision relied on by the learned counsel for the claimants is the latest decision, this Court is bound by the said judgment. 7. Before parting with this Judgment, I consider it just and reasonable to observe as follows: As when accident occurs, the concerned police officials and the Road Transport Authority officials should inform the insurance companies with which the vehicle or the vehicles involved in the accident are insured. Then, the insurance companies must verify whether there are any violations of conditions of policy. If, in the opinion of the insurance company, there are violations of the terms and conditions of the insurance policy, the insurance companies must take steps to see that the vehicle or vehicles involved in the accident or the properties of the insured sufficient to enable the Insurance Companies to recover the amount of compensation that may be approximately awarded to the claimants should be attached. All such steps have to be taken at the initial stage itself.
All such steps have to be taken at the initial stage itself. Admittedly, no such steps were taken by the Insurance Company till this date, therefore, at this stage, it may not be just and reasonable to issue directions as prayed by the learned counsel for the appellant. It is made it clear that the insurance company is at liberty to initiate proceedings before the concerned Executing Court as if the dispute between the insurer and the owner was subject matter of determination before the Tribunal and the issue is decided against the owner in favour of the insurer. The insurance company may take all steps necessary to recover the amount from the insured, but release of the amount in favour of the claimants cannot be stopped in the interest of justice, because the accident in this case occurred on 19.4.2008 and the first claimant was aged about 23 years the 2nd claimant was aged about one year, the third claimant was aged about 60 years and the 4th claimant is aged about 58 years on the date of filing of the claim petition and there is no possibility to dispose of the appeal in near future since MACMAs of the year 2000-2001 are still pending. Therefore, it is not desirable to accept the request of the learned counsel for the appellant. Therefore, the appellant is directed to comply with the award passed by the Tribunal within three months from the date of receipt of a copy of this order. On deposit of such amount, the claimants are permitted to withdraw the same with accrued interest thereon. Subject to the observations made supra, the Appeal is dismissed. There shall be no order as to costs. As far as award of dismissal of claim against 6th and 7th respondents is concerned, the same stands confirmed.