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2023 DIGILAW 961 (AP)

Nissanakara Venu v. Kota Masthan Reddy

2023-07-04

V.GOPALA KRISHNA RAO

body2023
JUDGMENT: The appellant is claim petitioner and the respondents are respondents in M.V.O.P.No.702 of 2007 on the file of the Chairman, Motor Accident Claims Tribunal-cum-V Additional District Judge, Nellore. 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 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.3,00,000/- for the injuries sustained by him in a motor vehicle accident that took place on 02.07.2006. 4. The brief averments in the petition filed by the petitioner are as follows: On 02.07.2006 at about 3.30 p.m. the petitioner and another boarded an auto bearing registration No.AP 26W 9665 at old bus stand centre, Kaligiri village, to go to M.R.O’s office centre and when the auto reached near Syed Mohammed Tiffin Stall, the driver of the auto lost control over the auto due to his rash and negligent driving and thereby, the auto hit an electrical pole located on the western side of the road, resulting in injuries to the petitioner. The 1st respondent is driver-cum-owner and the 2nd respondent is insurer of the crime auto. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioner. 5. The 1st respondent was set ex parte. The 2nd respondent/Insurance company filed a counter by denying the manner of accident. It is pleaded that the driver of the auto was not holding a driving licence to drive the auto at the time of accident and violated the terms and conditions of the policy and therefore, the Insurance company is not liable to pay any compensation. 6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal: 1) Whether the accident occurred on account of the rash and negligent riding of the vehicle bearing No.AP 26W 9665 by its rider and whether it resulted injuries to the victim? 2) Whether the petitioner is entitled for compensation? If so, to what amount? 3) Which of the respondents are liable to pay compensation? 4) To what relief? 7. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 to 4 were examined and Exs.A.1 to A.12 and Ex.C.1 were marked. 2) Whether the petitioner is entitled for compensation? If so, to what amount? 3) Which of the respondents are liable to pay compensation? 4) To what relief? 7. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 to 4 were examined and Exs.A.1 to A.12 and Ex.C.1 were marked. On behalf of the 2nd respondent/Insurance company, R.Ws.1 to 3 were examined and Exs.B.1 to B.3 and Ex.X.1 were marked. 8. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of offending auto and accordingly, awarded an amount of Rs.1,60,000/- with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of deposit against respondent No.1 only and dismissed the claim petition against the 2nd respondent/Insurance company. Aggrieved by the same, the appellant/petitioner preferred the present appeal. 9. Heard learned counsels for both the parties. 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, and that the Tribunal erred in dismissing the rest of the claim without appreciating the oral and documentary evidence properly. 11. Now, the point for determination is: Whether the order of the Tribunal needs any interference of this Court? 12. POINT: On considering the evidence of P.W.2, who is an eye witness to the accident, and Exs.A.1-attested copy of first information report and Ex.A.2-attested copy of charge sheet and taking into consideration of the fact that the evidence of P.W.2 remained unrebutted and the 1st respondent/driver of the auto was not examined in this case to rebut the evidence of P.W.2 as he is the best person to speak about the manner of accident, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending auto. No appeal was filed by the respondents against the said finding. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. No appeal was filed by the respondents against the said finding. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. It is the case of the petitioner that he took treatment in Dr.Ankaiah Ramanadham Smaraka Praja Vidyasala, Kaligiri for a period of 22 days and later took treatment in Narayana Medical College Hospital, Nellore for four days. Subsequently, he was admitted in the hospital of Dr.M.Raghuramaiah where he took treatment for two months and underwent three operations. In order to prove his case, the petitioner got examined the doctors, who treated him in the hospitals, as P.Ws.3 and 4 and relied on Exs.A.7 to A.12 and Ex.C.1. 14. By appreciating the evidence of P.Ws.3 and 4 and documentary evidence in Exs.A.8 to A.10, A.12 and Ex.C.1 in proper perspective, the Tribunal granted an amount of Rs.1,14,000/- towards medical expenses, Rs.45,000/- towards pain and suffering, and Rs.1,000/- towards transport expenses. In total, an amount of Rs.1,60,000/- was awarded towards compensation to the petitioner. The compensation awarded to the petitioner, in my view, is just and reasonable. Therefore, there is no need to interfere with the quantum of compensation awarded by the Tribunal. 15. There is no dispute that the 1st respondent is the driver-cum-owner and the 2nd respondent is insurer of the offending auto under Ex.B.1-copy of policy and the policy was also in force at the time of accident. 16. The accident occurred in the year 2006. In order to establish its contention that the 1st respondent/driver of the auto did not possess driving licence at the time of accident, the 2nd respondent/Insurance company got examined R.W.2. R.W.2 is the Junior Assistant working in the office of the M.V.Inspector, Kavali. He deposed that the 1st respondent was not given any driving licence to drive the offending auto at their office and that they verified the driving licences from 2003 to 2011. In cross-examination he admitted that he did not get any information from the R.T.O’s office regarding the licence of the driver of the auto. However, he denied the suggestion that the 1st respondent was having a valid licence. From the above, it is clear that the 1st respondent/driver of the auto was not holding driving licence to drive the auto from 2003 to 2011. Therefore, I am of the view that the 1st respondent/driver-cum-owner violated the conditions of Ex.B.1-copy of policy. 17. However, he denied the suggestion that the 1st respondent was having a valid licence. From the above, it is clear that the 1st respondent/driver of the auto was not holding driving licence to drive the auto from 2003 to 2011. Therefore, I am of the view that the 1st respondent/driver-cum-owner violated the conditions of Ex.B.1-copy of 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. For the foregoing discussion and in view of the above decision of the Hon’ble Apex Court, 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/owner of the offending auto, by filing an execution petition and without filing any independent suit. 19. Accordingly, the 2nd respondent/Insurance Company is directed to deposit the compensation amount of Rs.1,60,000/- 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/owner-cum-driver of the offending auto by filing an execution petition and without filing any independent suit. On such deposit, the appellant/petitioner is entitled to withdraw the same. 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. 20. The appeal is accordingly disposed of. No order as to costs. On such deposit, the appellant/petitioner is entitled to withdraw the same. 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. 20. 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.