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2025 DIGILAW 1327 (TS)

Myathari Manemma v. K. Keeru Naik, Medak District

2025-10-29

B.R.MADHUSUDHAN RAO

body2025
JUDGMENT : B.R.MADHUSUDHAN RAO, J. 1. The Motor Accidents Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the MV Act’) assailing the award passed by the Motor Accidents Claims Tribunal - cum - I Additional District Judge, Medak at Sangareddy in MVOP.No.413 of 2011, dated 27.02.2013. 2. Appellants are the petitioners-claimants and respondents are the respondents in MVOP.No.413 of 2011. 3. Appellants-petitioners have filed claim petition under Section 166 of the MV Act claiming compensation of Rs.3,50,000/- for the death of the deceased Myathari Ashappa. 4. Appellant No.1 - petitioner No.1 is the wife, appellant Nos.2 to 5 - petitioner Nos.2 to 5 are the children of late Myathari Ashappa. 5. Myathari Ashappa is a skilled labourer working as a mason and was earning Rs.6,000/- per month. On 04.03.2011 at about 08.00 p.m., Ashappa travelled as a pillion rider on a motorcycle bearing No.AP-23-1274 along with one M.Lasmappa and Mahaboob to go to Shekapur village from Bonasapuram to attend Valima dinner of one Abdul Nabi. Motorcycle was driven by M.Lasmappa and when they reached the shivar of Malchelma village, the driver of the auto bearing No.AP-23-W-1682 drove the same in a rash and negligent manner with high speed came on the wrong side in opposite direction and hit their motorcycle. Due to which M.Ashappa sustained grievous injuries on his right leg, right kidney, right foot and other injuries all over the body. He was shifted to Bidar Institute of Medical Science, Government Hospital Bidar, was treated from 04.03.2011 to 20.03.2011 and surgery is also performed on him. On the advice of the doctors while they were shifting M.Ashappa to Gandhi Hospital, Secunderabad, in Tata Sumo vehicle, he died at 07.00 a.m. on 20.03.2011 on the way to the hospital at Patancheru town. The deceased was aged about 52 years as on the date of accident. On the complaint, Police, Zaheerabad Rural registered a case in Crime No.25 of 2011 under Section 304-A of IPC against the driver of the auto bearing No.AP-23-W-1682 and prayed to award compensation jointly and severally. 6. Respondent No.1 remained ex-parte before the Tribunal. 7. Respondent No.2 filed counter and denied the age, accident and involvement of the crime vehicle. On the complaint, Police, Zaheerabad Rural registered a case in Crime No.25 of 2011 under Section 304-A of IPC against the driver of the auto bearing No.AP-23-W-1682 and prayed to award compensation jointly and severally. 6. Respondent No.1 remained ex-parte before the Tribunal. 7. Respondent No.2 filed counter and denied the age, accident and involvement of the crime vehicle. Further contended that there is a contributory negligence on the part of the deceased as they were triple riding on the motorcycle at the time of the accident, the owner and insurer of the motorcycle No.AP-23-1274 are also proper and necessary parties to the petition and the claim petition is bad for non-joinder of necessary parties. The appellants- petitioners are put to strict legal proof that the driver of the auto and the driver of the motorcycle were having valid driving license as on the date of accident. 8. The learned Tribunal has framed the following issues: 1) Whether the death of the deceased occurred in the motor accident due to the rash and negligent driving of the driver of the crime vehicle? 2) Whether the petitioners were entitled for compensation as prayed for, if so, at what amount and from whom? 3) To what result? 9. Appellant No.1 - petitioner No.1 is examined as PW1 and also examined PW2 – Maibu and got marked Exs.Al to A6. Respondent No.2 got examined RW1-MSRKJ.Prasad and got marked Exs.B1 to B6. 10. The learned Tribunal after analyzing the evidence adduced by the parties and after going through the documents thereon, has partly allowed the claim petition by awarding compensation of Rs.3,22,000/- with proportionate costs and interest at the rate of 6% per annum from the date of petition till the date of deposit of amount and the respondent No.1 alone is held to be liable to pay the awarded amount and the respondent No.2 is discharged from the liability, which is impugned in the present appeal. 11. Learned counsel for the appellants-petitioners submits that the Tribunal ought to have noted that the deceased was proceeding on motorcycle as a pillion rider, as per Exs.A1 to A3 accident occurred due to rash and negligent driving of the driver of the auto and the respondent No.2 ought to have been made liable to pay compensation. The learned Tribunal committed grave error in awarding compensation against respondent No.1 only. The learned Tribunal committed grave error in awarding compensation against respondent No.1 only. But the policy issued by respondent No.2 covers the risk of third party as additional premium is paid and this itself is sufficient to cover the risk of the third party. The respondent No.2 cannot take a defence to avoid the claim of the appellants - petitioners. The learned Tribunal ought to have made the respondent No.2 vicariously liable to pay the compensation along with respondent No.1 and that he relied on decisions in the cases of (i) Parminder Singh Vs. New India Assurance Company Limited and Others , 2019 (4) ALT 230, (ii) National Insurance Company Limited Vs. Smt.K.Mariyamma and another , CMA.No. 1009 of 2007, dated 05.01.2023, High Court for the State of Telangana and (iii) The New India Assurance Company Limited Vs. Smt. Umabai and three others , MACMA. No. 1401 of 2010, dated 28.04.2023, High Court for the State of Telangana 12. Learned counsel for respondent No.1 submitted that the learned Tribunal has wrongly exonerated respondent No.2 and discharged it from the liability. The policy issued by the respondent No.2 covers the risk of third party as additional premium is paid and prayed to pass appropriate orders. 13. None appeared for respondent No.2 to advance the arguments in spite of granting opportunity. Hence, the matter is taken up on merits. 14. Heard learned counsel, perused the material. 15. Now the points for consideration are: 1) Whether the appellants-petitioners have made out any case that the respondent No.2 is also jointly and severally liable to pay compensation? 2) Whether the award passed by the learned Tribunal in MVOP.No.413 of 2011 suffers from any perversity or illegality, if so, does it require interference of this Court? POINT NOs.1 AND 2: 16. The Supreme Court in Shamanna Vs. The Divisional Manager, The Oriental Insurance Company Limited and Others4 held as under: "13. So far as the recovery of the amount from the owner of "the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that "....that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that "....that 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" 17.1 On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent - Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. 17.2. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., (2018) 9 SCC 650 held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle. [See: Parminder Singh']. 18. Insurance company cannot repudiate liability for compensation solely on the grounds of permit violation by the driver or lack of valid driving license unless it is proved that the violation or omission was committed with the knowledge or connivance of the insured (See: K.Mariyamma 2 19. In Smt.Umabai 3 High Court placed reliance on Shamanna directed the Insurance Company to pay the compensation and then recover the same from the owner of the vehicle. 20. Now I have to see whether the appellants-petitioners fall within the law laid down by the Supreme Court in the aforesaid decisions and the applicability of the decisions cited by the appellants’ counsel of the High Court. 21. There is no dispute in the manner in which the accident has occurred and the learned Tribunal has rightly held that the accident has occurred due to rash and negligent driving of the driver of auto bearing No.AP-23-W-1682. 21. There is no dispute in the manner in which the accident has occurred and the learned Tribunal has rightly held that the accident has occurred due to rash and negligent driving of the driver of auto bearing No.AP-23-W-1682. The only point in the appeal is that whether respondent No.2 is liable to pay compensation jointly and severally? 22. Ex.B2 is the driving license of Srinivas Golla for non- transport category, it is issued on 03.03.2001 and it was valid up to 02.03.2021. Srinivas Golla had a driving license for transport category on 21.03.2003 and it was valid up to 07.12.2009. The accident occurred on 04.03.2011 and the crime vehicle is a passenger auto. Respondent No.2 has got issued a notice to the driver under Ex.B4 calling upon him to show his driving license which was valid and subsisting as on the date of accident. Similar notice is got issued to respondent No.1 by respondent No.2 under Ex.B5. The driver and owner of the crime vehicle remained silent and they have not produced valid driving license. Owner of the crime vehicle i.e., respondent No.1 remained ex-parte before the Tribunal and he failed to contest the case. 23. The learned Tribunal arrived at a conclusion that as the driver and owner of the crime vehicle failed to produce valid driving license in pursuance of Exs.B4-office copy of notice sent to driver and B6-acknowledgment of owner arrived at a conclusion that insurance company is discharged from its liability. Admittedly, as on the date of accident, the driver of the crime vehicle do not possess valid driving license. 24. The law is settled with regard to liability of insurance company that if the driver of the crime vehicle does not possess a valid driving license the principle of pay and recovery can be ordered to direct the insurance company to pay the victim and then recover the amount from the owner of the offending vehicle, which is fortified by the judgment of the Supreme Court in Parminder Singh 1 and Shamanna 4 . The judgment cited by the appellants’ counsel in Smt.K.Mariyamma 2 and Smt.Umabai 3 are also on the same point. In view of the principles laid down by the Supreme Court stated supra, respondent No.2 is liable to pay compensation to the appellants-petitioners and recover the same from the owner of the vehicle. 25. The judgment cited by the appellants’ counsel in Smt.K.Mariyamma 2 and Smt.Umabai 3 are also on the same point. In view of the principles laid down by the Supreme Court stated supra, respondent No.2 is liable to pay compensation to the appellants-petitioners and recover the same from the owner of the vehicle. 25. In Shamanna 4 the Supreme Court held that the insurance company shall not be required to file a suit and 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. 26. In view of the principles laid down by the Supreme Court stated supra, the learned Tribunal has erroneously discharged the respondent No.2 from its liability. The order passed by the learned Tribunal requires interference of this Court and the appellants -petitioners have made out a case that respondent No.2 is also liable to pay compensation. 27. MACMA is allowed as under: i) Respondents Nos.1 and 2 are jointly and severally liable to pay the compensation of Rs.3,22,000/- with proportionate costs and interest at the rate of 6% per annum from the date of petition till the date of deposit. ii) The apportionment made by the learned Tribunal is not disturbed. iii) Respondent No.2 shall pay the compensation amount within a period of two [2] months from the date of receipt of the copy of the judgment and recover the same from the owner of the vehicle [respondent No.1]. There shall be no order as to costs. Interim orders if any stands vacated. Miscellaneous application/s stands closed.