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2020 DIGILAW 186 (AP)

Oriental Insurance Co. Ltd. v. Atluri Kotamma

2020-03-04

M.VENKATA RAMANA

body2020
JUDGMENT : The insurer is the appellant. Respondents 1 to 8 are the claimants and respondent No.9 is the owner of the offending vehicle. 2. Respondents 1 to 7 laid a claim under Section 166 of the Motor Vehicles Act for a compensation of Rs.1.00 lakh on the death of Sri Atluri Chinna Bangaru. 8th respondent is the mother of the deceased. Whereas, first respondent is the wife, respondents 2, 3, 5 being sons and respondents 4, 6 and 7 are the daughters of the deceased. 3. According to the claimants, the deceased boarded a lorry AP 26 T 2925 to go to Ongole from Medarametla and at about 9.00 a.m. at Timmannapalem, this lorry met with an accident on account of rash and negligent driving. This accident occurred when this lorry was suddenly turned to the left resulting in overturning. 4. The claimants also stated that the deceased was 45 years old at the time of the accident and on account of his death, who was living as a labourer, earning Rs.100/-per day, the entire family suffered not only loss of income but also other amenities in life. 5. By the date of this accident, the appellant insurer had offered insurance coverage to the offending lorry belonging to the 9th respondent. This fact is not in dispute. 6. The appellant resisted the claim mainly on the ground that there was fundamental breach of the terms of contract of insurance while disputing the age, income of the deceased as well as the fact that the claimants were his dependants. It was also questioned on the ground that the claim was exorbitant and unnecessarily excessive. It also questioned nature of the accident denying rash and negligence on the part of the driver of the offending lorry. 7. On the pleadings, the Tribunal settled the following issues for trial: “1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP 26 T 2925? 2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom? 3. To what relief?” 8. 7. On the pleadings, the Tribunal settled the following issues for trial: “1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP 26 T 2925? 2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom? 3. To what relief?” 8. Basing on the evidence of the first respondent as well as third respondent, considering the effect of Ex.A1 to Ex.A6, in relation to evidence let in by the appellant through R.W.1 one of it’s officers as well as Ex.B1 and Ex.B2, the Tribunal held that the claimants are entitled for a compensation of Rs.86,200/-with proportionate costs and future interest at 9% per annum from the date of filing the petition till realisation against 9th respondent only. However, the appellant was directed to pay the awarded amount first and later recover from the 9th respondent. Appropriate directions were also given regarding apportionment of this compensation among all the claimants. 9. Against this award, being dissatisfied, the appellant insurer has preferred this appeal. Only ground urged in this appeal by the insurer is in respect of direction of the Tribunal to pay first to the claimants whatever compensation awarded under the decree and later recover, while disputing its liability basing on the admitted situation that the deceased was a gratuitous passenger. 10. None represented the claimants at the hearing. The matter is now being disposed of basing on the material available. 11. There is also no material that the claimants have preferred an appeal dissatisfied with the award of the Tribunal. 12. In this backdrop, the question now arises for determination is: -"Whether the Tribunal is justified in directing the appellant to pay the compensation amount so awarded first and later recover from the 9th respondent in view of violation of terms of the policy of insurance?" 13. In the light of the contentions of the appellants, it is taken for granted that the accident did occur on account of rash and negligent driving of the driver of the offending lorry in which the deceased died. It was on 22.06.1996 at 9.00 a.m. at Thimmannapalem. 14. Thus, issue No.1 was held in favour of the claimants by the Tribunal, and these findings stand confirmed. 15. It was on 22.06.1996 at 9.00 a.m. at Thimmannapalem. 14. Thus, issue No.1 was held in favour of the claimants by the Tribunal, and these findings stand confirmed. 15. With reference to issue No.2, specific findings were recorded by the Tribunal observing that the deceased was a labourer earning Rs.900/-per month. Out of it, 1/3rd was deducted towards his personal expenses and Rs.600/-per month was taken to represent the dependency factor of the claimants. Having regard to the age of the deceased at 50, multiplier 11' was applied and thus on account of loss of income vis-a-vis, dependency, Rs.79,200/-was awarded. Rs.2,000/-was awarded towards funeral expenses and Rs.5000/-towards loss of consortium. Thus, in all Rs.86,200/-was awarded as just and appropriate compensation. 16. It is an unfortunate case, where the claimants did not choose to question the award of the Tribunal. Particularly, having regard to change in law, on account of judgments of Hon’ble Supreme Court in SMT.SARLA VARMA AND ANOTHER v. DELHI TRANSPORT CORPORATION AND OTHERS and NATIONAL INSURANCE COMPANY v. PRANAY SETHI, the claimants definitely would have got more compensation. Even though the matter was decided in April 2005 by the Tribunal, there is neither prohibition nor any restriction to apply such law as has been enunciated by Hon’ble Supreme Court. Particularly, having regard to nature of legislation and effect of Section 166 of M.V. Act being beneficial, necessary allowances must be made for the cause of unfortunate victims in a motor accident. Nonetheless, having regard to limitations, the Court has to bear with, in an appeal by the insurer, in the absence of any cross appeal or cross objections from the claimants, the findings so recorded by the Tribunal should be considered. They have to be necessarily confirmed. One more reason in this respect is that the insurer did not question the quantum of compensation, so awarded. 17. The Tribunal took into consideration the judgment of this Court when it was at Hyderabad in UNITED INDIA ASSURANCE CO. LTD. v. TAM TAM VENKATA REDDY & ANOTHER and directed that the insurer shall pay first and then recover from the owner of the lorry. 18. This finding, as such now cannot be questioned by the appellant. 17. The Tribunal took into consideration the judgment of this Court when it was at Hyderabad in UNITED INDIA ASSURANCE CO. LTD. v. TAM TAM VENKATA REDDY & ANOTHER and directed that the insurer shall pay first and then recover from the owner of the lorry. 18. This finding, as such now cannot be questioned by the appellant. The reason is that the present trend of legal position, basing on the rulings of Hon’ble Supreme Court in applying Section 166 of M.V. Act read with Section 168 of M.V.Act is to favour the claimants, even if there is definite and certain proof of violation of policy of insurance and its terms by the owner of the concerned vehicle. The claimants being third parties to such contract, cannot be made to answer for such violations by the owner, who has to bear with the Act or omissions of his employees, viz., driver or cleaner on account of vicarious liability. In SHAMANNA AND ANOTHER v. THE ORIENTAL INSURANCE CO.LTD. AND OTHERS relying on NATIONAL INSURANCE COMPANY v. SWARAN SINGH AND OTHERS, after reviewing the law in this respect, it was observed in an almost identical fact situation that insurer shall pay first and then recover from the insured in the same proceedings. Similarly in MANUARA KHATUN & ORS VS RAJESH KR. SINGH & ORS the insurer was directed to pay first to the claimants and satisfy the decree and to proceed against the insured in the same proceedings. It was so considered in one of the earliest cases in NATIONAL INSURANCE CO.LTD v. BALJIT KAUR AND OTHERS by Hon’ble Supreme Court, while clarifying the legal position, making a departure from what was held in NEW INDIA ASSURANCE CO. LTD v. ASHA RANI AND OTHERS that the interests of justice would sub-serve if the insurer is directed to satisfy the awarded amount in favour of the claimants first and later recover from the owner of the vehicle. 19. Thus, law appears as of now being settled in this respect. In the context of this legal position, the sole ground alleged on behalf of the appellant in this appeal cannot stand. Hence, this appeal has to be dismissed confirming the award of the Tribunal in all respects. 20. In the result, this M.A.C.M.A. is dismissed confirming the decree and award of the Tribunal. No costs. All pending petitions, shall stand closed.