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2023 DIGILAW 1015 (AP)

Bylapudi Appa Rao v. Lekkala Appalanarasayya

2023-07-06

V.GOPALA KRISHNA RAO

body2023
JUDGMENT : The appellant is claim petitioner and the respondents are respondents in M.V.O.P.No.584 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Vizianagaram. The appellant filed the appeal questioning the legal validity of the order of the Tribunal. 2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition. 3. The claim petitioner filed the petition under Section 163-A of the Motor Vehicles Act, 1988 claiming compensation of Rs.1,50,000/- for the injuries sustained by him in a motor vehicle accident that took place on 11.05.2007. 4. The brief averments in the petition filed by the petitioner are as follows: On 11.05.2007 the petitioner was proceeding in an auto bearing registration No.AP 35U 1702 with a band party to attend a marriage at Datti village via Kothavalasa and when the auto reached near Nimmalapalem bridge at 22.15 hours, a motor cycle bearing registration No.AP 31AN 4194 being driven by the 1st respondent/driver in a rash and negligent manner came in opposite direction and dashed on the right side of the auto, as a result, the auto turned turtle on the road and the petitioner sustained simple and grievous injuries. The S.H.O., Kothavalasa P.S. registered a case in Crime No.82 of 2007 for the offence under Section 338 of I.P.C. The 1st respondent being the driver cum owner of the motor cycle, the 2nd respondent being the Insurance company of the said vehicle, the 3rd respondent being the driver cum owner of the auto and the 4th respondent being the insurer of the said vehicle are jointly and severally liable to pay compensation to the petitioner. 5. The 3rd respondent was set ex parte. Respondent Nos.1, 2 and 4 filed counters separately by denying the manner of accident. It is pleaded by the 1st respondent that the accident took place only due to rash and negligent driving of the driver of the auto and there is no negligence on his part. It is pleaded by the 2nd respondent/Insurance company that the accident occurred due to contributory negligence of the petitioner, as such, the 2nd respondent is not entitled to pay compensation and the 3rd respondent, who is the owner cum driver of the auto violated the terms and conditions of the policy. It is pleaded by the 2nd respondent/Insurance company that the accident occurred due to contributory negligence of the petitioner, as such, the 2nd respondent is not entitled to pay compensation and the 3rd respondent, who is the owner cum driver of the auto violated the terms and conditions of the policy. It is pleaded by the 4th respondent/Insurance company that the 3rd respondent violated the terms and conditions of the policy. 6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal: 1) Whether the pleaded accident occurred resulting in injuries to the petitioner due to his involvement in motor vehicle accident involving the motor cycle bearing No.AP 31 AN 8194 and auto bearing No.AP 35U 1702 when they were in use in a public place? 2) Whether the petitioner is entitled to any compensation and, if so, at what quantum and from which of the respondents? 3) To what relief? 7. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 were marked. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B.1 to B.6 and Exs.X.1 and X.2 were marked. 8. At the culmination of the enquiry, based on the material available on record, the Tribunal allowed the claim petition in part awarding an amount of Rs.54,600/- with proportionate costs and interest at 6% p.a. from the date of petition till the date of deposit against respondent No.1 alone while dismissing the claim petition against respondent Nos.2 to 4. Aggrieved against the exoneration of the Insurance company from the liability of payment of the compensation amount, the appellant/petitioner preferred the present appeal. 9. Heard learned counsels for both the parties and perused the record. 10. Learned counsel for the appellant/petitioner mainly contended that the 3rd respondent/Insurance company cannot escape from liability of payment of compensation on mere absence, fake or invalid license or disqualification of the driver and the Insurance company has to pay third party risks and recover the same from the owner of the offending vehicle. 11. Now, the point for determination is: Whether the order of the Tribunal needs any interference of this Court? 12. POINT: The claim is made under Section 163-A of the M.V. Act whereunder the petitioner need not prove the rash and negligent driving. 11. Now, the point for determination is: Whether the order of the Tribunal needs any interference of this Court? 12. POINT: The claim is made under Section 163-A of the M.V. Act whereunder the petitioner need not prove the rash and negligent driving. It is sufficient to prove that the vehicle was involved in the accident. On considering the evidence of P.W.1, the injured herein, and on considering Exs.A.1-attested copy of first information report and Ex.A.4-attested copy of charge sheet, it is proved that the accident occurred due to rash and negligent driving of the rider of the motor cycle and in the said accident, the petitioner sustained injuries. Further, no appeal was filed by the respondents against the order of the Tribunal. 13. In order to prove his case that he sustained a fracture injury on his left shoulder and operation was also conducted and due to the said injury, he cannot lift any weights and he is unable to do any work and he spent huge money towards treatment and extra nourishment, the petitioner got examined the doctor, who treated him, as P.W.2. P.W.2 in his evidence deposed that he issued Ex.A.8-disability certificate stating that the petitioner is suffering with 15% disability which is partial and permanent in nature. P.W.2 also deposed that the petitioner would face difficulty in doing hard work with his left hand and he cannot lift heavy weights. The petitioner also relied on Ex.A.2-wound certificate and Ex.A.5-medical bills. A perusal of Ex.A.2 reveals that the petitioner sustained two grievous injuries. As per the evidence of P.W.2, on his advice, the petitioner took an x-ray under Ex.A.7 which goes to show that the fracture of ribs are united and fracture of clavicle middle 1/3rd is mal united. Based on the evidence of P.W.2 coupled with Exs.A.7 and A.8, the tribunal rightly fixed the disability of the petitioner at 10%. Therefore, it warrants no interference. 14. According to the petitioner, he was aged about 40 years on the date of accident and he used to earn Rs.200/- per day as a barber and a master of a band party. Therefore, it warrants no interference. 14. According to the petitioner, he was aged about 40 years on the date of accident and he used to earn Rs.200/- per day as a barber and a master of a band party. As no documentary evidence was filed to establish the same, considering the evidence of P.W.2 and Ex.A.2-wound certificate of the petitioner, the Tribunal took the age of the petitioner in between 50 to 55 years and as per the decision of the Hon’ble Apex Court in Sarla Varma case, taken the appropriate multiplier to the age group of the petitioner as ‘11’. By giving cogent reasons, the Tribunal also fixed the monthly income of the petitioner as Rs.3,000/- i.e., Rs.36,000/- per annum. Accordingly, an amount of Rs.39,600/- (Rs.36,000/- x multiplier ‘11’ x disability 10%) was awarded by the Tribunal towards special and general damages. Apart from that, the Tribunal awarded Rs.15,000/- towards medical expenses as per II Schedule of Section 163-A of the M.V.Act, though the petitioner filed medical bills to a tune of Rs.26,763/-. In all, an amount of Rs.54,600/- was awarded towards compensation to the petitioner. I am of the view that the compensation awarded by the Tribunal is just and reasonable. Therefore, there is no need to interfere with the said quantum of compensation awarded by the Tribunal. 15. Admittedly, the 1st respondent is the rider cum owner and the 2nd respondent is the insurer of the motor cycle under Ex.B.1-copy of policy and the policy was also in force on the date of accident. 16. It is the contention of the learned counsel for the respondent No.2/Insurance company that the rider of the motor cycle was not holding any driving licence at the time of accident. In support of its contention, the Insurance company got examined R.W.2, who is the Junior Assistant in RTA office, Anakapalli. In his evidence R.W.2 deposed that the 1st respondent was issued MCWG licence (non-transport) on 21.11.2007 and the same was valid up to 20.11.2012 and he was also issued LMV non-transport licence on 21.11.2007 and the same was valid up to 20.11.2012. These two licences were issued on 21.11.2007 i.e., subsequent to the date of accident on 11.05.2007. A perusal of Ex.X.2, which is the driving licence extract of the 1st respondent, discloses that the driver of the motor cycle was not having driving licence on the date of accident. These two licences were issued on 21.11.2007 i.e., subsequent to the date of accident on 11.05.2007. A perusal of Ex.X.2, which is the driving licence extract of the 1st respondent, discloses that the driver of the motor cycle was not having driving licence on the date of accident. In view of the above reasons, I am of the opinion that the 1st respondent/rider cum owner of the motor cycle was not having driving licence at the time of accident and he violated the terms and conditions of the policy. 17. In National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 (2) ALD (SC) 36, the Hon’ble Supreme Court held as under: “The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” 18. The principle laid down in above mentioned decision of the Hon’ble Apex Court is that even in case of absence, fake or invalid licence or disqualification of the driver for driving, the Insurance company is liable to satisfy the award in favour of 3rd party at the first instance and later recover the award amount from the owner of offending vehicle, even when the Insurance company could able to establish breach of terms of policy on the part of the owner of the offending vehicle. 19. For the foregoing discussion, the 2nd respondent/Insurance Company is liable to pay the compensation to the petitioner in the first instance and later recover the same from the 1st respondent/rider cum owner of the motor cycle, by filing an execution petition and without filing any independent suit. 20. 19. For the foregoing discussion, the 2nd respondent/Insurance Company is liable to pay the compensation to the petitioner in the first instance and later recover the same from the 1st respondent/rider cum owner of the motor cycle, by filing an execution petition and without filing any independent suit. 20. Accordingly, the 2nd respondent/Insurance Company is directed to deposit the compensation amount of Rs.54,600/- with costs and interest as ordered by the Tribunal, before the Tribunal in the first instance within two months from the date of this judgment and later recover the same from the 1st respondent/rider cum owner of the motor cycle by filing an execution petition and without filing any independent suit. The order passed by the Tribunal with regard to the liability is modified to the extent indicated above. The order of the Tribunal in all other respects shall remain intact. 21. The appeal is accordingly disposed of. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.