HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.356
OF 2011
JUDGMENT:
The injured-claimant in O.P.No.647 of 2006 under Section 166 of the Motor Vehicle
Act,1988 (for short, ‘the Act’), against three respondents(Driver, Owner
and Insurer of the crime vehicle auto bearing No.AP15-V-9694 for compensation of Rs.6,00,000/- for the
injuries sustained by him in the accident dated 22.2.2003 of the auto driven by
the 1st respondent belongs to the 2nd respondent insured
with the 3rd respondent in which he was a passenger claiming that it
is due to rash and negligent driving of the driver, the auto turned turtle due
to dashing against culvert near Eenadu office on the outskirts of Alugunoor village, Karimnagar district. The
tribunal having found that there was involvement of the auto however, the
driver was as mentioned in the First Information Report including from the
statements of the witnesses recorded in filing the chargesheet was one Jakkula
Swamy whereas, R.1 Pattela Anjaiah was planted as if driven the auto at the time of accident in
collusion with the owner in filing the chargesheet by influencing the police
cause recording the statement and as if surrendered though being conscious of
original driver who drove the vehicle had no licence and the person planted by
name Pattem Anjaiah was having license to make the insurer liable for paying
compensation. The compensation awarded is Rs.2,57,000/- with interest at 7.5%
by exonerating the insurer against the owner even by exonerating the driver
from the claim petition averments also that Jakkula Swamy was the driver as per
the First Information Report and P.W.1’s evidence.
2. It is impugning the same, the present appeal is filed
with the contentions that the tribunal gravely erred in exonerating the insurer
in fixing liability and also the quantum of compensation granted is utterly low. The learned counsel for the claimant
reiterated said contentions during course of hearing.
3. Whereas, it is the contention of the learned counsel for
the Insurer from the respondents 1 and 2 of the claim petition-driver and owner
respectively did not choose to contest even before the tribunal did not turn up
though served taken as heard to decide on merits, that the tribunal is right in
exonerating the Insurer and for this Court while sitting in appeal there is
nothing to interfere. Hence, to dismiss the appeal.
4. Perused the material on record. The parties hereinafter are referred to as
arrayed before the Tribunal for the sake of convenience in the appeal.
5. Now the
points that arise for consideration in the appeal are:
1.
Whether
the award of the tribunal in not fixing liability to the Insurer is
unsustainable, whether the compensation
awarded by the tribunal is utterly low and unjust and requires interference by
this Court while sitting in appeal to enhance, if so, with what compensation
and with what observations?
2.
To
what result?
Point
No.1:
6. No doubt as rightly held
by the tribunal that the accident was the result of the rash and negligent
driving of the driver of the crime auto belongs to the 2nd
respondent insured with the 3rd respondent covered by Ex.B.5 policy.
Coming to the driver of the crime vehicle at the time of accident is one Jakkula
Swamy as mentioned in the First Information Report and also in the statements
of the prosecution witnesses before the investigating officer covered by
Exs.B.1 to B.4 contradictions in 161 Cr.P.C. statements of Manthrakolla Ravi,
Katike Rajamouli, Alvala Lingaiah and Dr.Y. Vishnuwardan, of the inmates of the
auto that it is one Jakkula Swamy that was driven at the time of the accident,
that K.Rajamouli and K.Lingaiah even examined before the tribunal as P.Ws. 3
and 4 and the statements given by them before the police even confronted to
them, they could not get over. In fact,
R.W.2 Inspector of Police who investigated the case and recorded the statements
deposed that the above persons stated so before him and he recorded what they
disclosed of the driver at the time of the accident was only Jakkula Swamy and
not the 1st respondent-Pattem Anjaiah. The tribunal thereby right in
holding that the crime vehicle was actually driven by Jakkula Swamy who is not
a party to the claim petition and the 1st respondent-Pattem Anjaiah
is not the driver of the auto at the time of the accident and thereby R.1
cannot be made liable. The said evidence
on record so also of the 3rd respondent-Insurer but for 2nd
respondent-owner from saying even vehicle involvement proved the said Jakkula
Swamy as real driver at the time of the accident was shown having not valid driving
license. In fact, the finding of the Tribunal on the quantum of Rs.2,57,000/-
with interest at 7.5% arrived from the evidence on record for the injuries
sustained by the injured-claimant with percentage of disability taken into consideration;
for this Court while sitting in appeal requires no interference even for
re-appreciation of the evidence.
7. Coming to the fixing of
liability is concerned, the total exoneration of the Insurer is unsustainable
as contended by the learned counsel for the appellant-claimant. It is for the reason that the law is fairly
settled from the three judge Bench expression of the Apex Court in National Insurance Company Limited Vs. Swaran
Singh[1] same also held in Kusumlatha V. Satbir[2]
and even in the latest two judge bench expression of the Apex Court in S.Iyyappan Vs. United India Insurance
Company[3]
that even though the insurer has taken the defence that there is a breach of
conditions of the policy excluding from liability, from the driver is not duly
licensed in driving the crime vehicle when met with accident, third party has a
statutory right under Section 149 read with 168 of the Act to recover
compensation from insurer and it was for the insurer to proceed against the
insured for recovery of amount paid to third party in case there was any
fundamental breach of condition of Insurance policy. Having regard to the above, it is the
insurer also along with the insured-owner of the crime vehicle jointly and
severally liable to pay compensation to the claimant and then it is for the
Insurer to recover from the owner of the vehicle by filing execution petition
in the same award without need of any separate proceedings. Accordingly Point No.1 is answered.
POINT No.3:
8.
Accordingly and in the result, the appeal is partly allowed by confirming the
quantum of compensation of Rs.2,57,000/-(Rupees two lakhs fifty seven thousand
only) awarded by the Tribunal with interest at 7.5% p.a. from the date of claim
petition till the date of realization by modifying the liability from against
the owner(2nd respondent) fixed by the tribunal to the joint and
several liability of the insured and insurer (respondents 2 and 3) to be paid
by the Insurer and then to recover. The
respondents shall deposit said amount within one month from today, failing
which the claimant can execute and recover.
It is made clear from the settled expressions of the Apex Court in United
India Insurance Co. Ltd. V. Lehru[4]
and Oriental Insurance Company Limited Vs. Nanjappan[5]
that the insurer is
entitled, while depositing the amount payable, if not deposited or paid any
amount so far to deposit balance, to approach the Tribunal to direct the RTA
concerned not to register any transfer of the crime vehicle and to seek for
attachment of the crime vehicle or other property of the insured as an
assurance for execution and recovery in the same proceedings or under revenue
recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the
deposited amount to claimant (but for to invest in a bank) till such attachment
order is made. However, after the same,
the Tribunal shall not withhold the amount of the claimant, if there is any
necessity to permit for any withdrawal but for to invest the balance in fixed
deposit in a nationalized bank. Rest of the terms of the award of the Tribunal
holds good. There is no order as to
costs.
9. Miscellaneous
petitions, if any pending in this appeal, shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
24-12-2014
Vvr
