HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.4392
OF 2012
JUDGMENT:
This appeal is filed
by the 3rd
respondent-the United India Insurance Company Limited-Insurer among the three respondents
including the insured of the auto bearing No.AP 20 V 8537, aggrieved by the
award dated 23.08.2011 in M.A.T.O.P.No.116 of 2010 on the file of the learned
Chairman of the Motor Accidents Claims Tribunal–cum-III Additional District
Judge(F.T.C.II) Khammam, (for short, ‘Tribunal’), filed under Section
166 of the Motor Vehicle Act,1988 (for short, ‘the Act’), by the husband and three major sons of the
deceased by name Radhamma, aged about 47 years, who died in the accident caused
by the crime vehicle (auto) belongs to the 1st respondent and
already insured by the 2nd respondent with the 3rd
respondent, due to rash and negligent driving of its driver, for the claim of
Rs.3,50,000/- with interest at 12%p.a. since granted Rs.3,40,000/- with
interest at 6%p.a. directing the 3rd respondent-Insurer to pay
initially and then recover from the 2nd and 3rd
respondents, with the contentions in the grounds of appeal that the tribunal
failed to note that at the time of accident the driver possessed license to
drive Light Motor Vehicle(LMV) non-transport but not LMV transport that the
tribunal failed to see that the insured violated the policy conditions by
allowing the person to drive with LMV non-transport to drive the LMV transport that
the tribunal failed to note that the R.W.2 RTA Official categorically stated in
his cross examination that the driver possessed only LMV (Light Motor Vehicle) driving
license but not the transport and the tribunal further failed to conclude that
the driving license in question is not a valid and effective license, that the
tribunal gravely erred in law in applying to the facts, the case of Swaran
Singh of the Apex Court by giving a go-by to the guidelines framed in the said
decision, that the tribunal ought to have noted that the claimants all are majors
and earning members of the family and they are dependants on deceased and
thereby not entitled under any of the heads of compensation except loss of
estate and hence to set aside the award of the tribunal by allowing the appeal
and by exonerating the Insurer from liability. The learned counsel for the
insurer reiterated said contentions during course of hearing.
2.
Whereas, it is the contention of the learned counsel for the claimants (from
the respondents 1 and 2 of the claim petition remained exparte before the
tribunal, also did not turn up in spite of service of notices on them, hence
taken as heard) that the award of the tribunal holds good and for this Court
while sitting in appeal there is nothing to interfere.
3. Perused the material on record. The parties hereinafter are referred to as
arrayed before the Tribunal for the sake of convenience in the appeal.
4). Now
the points that arise for consideration in the appeal are:
1.
Whether the appellant-Insurer is to be exonerated from
liability and if so, the award of the tribunal fixing liability of pay and
recover is unsustainable and with what observations?
2.
Whether the compensation awarded by the tribunal is otherwise excessive
and exorbitant and requires interference by this Court while sitting in appeal,
if so, with what compensation and with what observations?
3.
To
what result?
Point
No.1:
5. The
fact that the accident was caused due to rash and negligent driving of the
driver of the crime auto bearing No.AP 20 V 8537 belongs to the 1st
respondent originally of 2nd respondent and Insured with the 3rd
respondent that resulted death of said Radhamma-the deceased is not in dispute. Now coming to decide
whether the 3rd respondent-Insurer can be exonerated from liability
to indemnify the respondents 1 and 2 to the third party claimants concerned,
the Apex Court in National
Insurance Company Limited Vs. Swaran Singh[1] National Insurance Company Limited Vs. Kusum
Rai[2] Kusumlatha Vs. Satbir and Others[3] Oriental Insurance Company Limited Vs. Nanjappan & Others[4]
United Indian Insurance Company Limited Vs. Lehru[5]
New Indian Insurance Company Limited Vs. Kamala[6]
Sohan Lal Passi Vs. P.Sesha Reddy[7]
and S.Iyyappan Vs. United Indian Insurance Company[8]
held that the insurer is once the policy covered the risk liable to indemnify the owner and even the
driver has no valid license to drive the crime vehicle, unless it is shown to
the willful and conscious knowledge of the owner as a
fundamental breach for owner of the vehicle has a responsibility to see whether
driver has a license to drive. In Kusumlatha(supra) it was held that the Tribunal has got inherent power to issue
such directions to insurer to pay and recover, 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, for 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 of such breach of condition of Insurance policy.
Further the Apex Court in Rikhi
Ram vs Smt. Sukhrania[9] held that even there is violation of
Section 157 of the Act by non-intimation of Transfer of ownership, the
transferee and transferor both along with Insurer are liable.
6. From the above legal principles and in the factual matrix
of case, the fact that the accident was the result of the rash and negligent
driving of the driver of the crime auto insured with the 3rd
respondent-Insurer covered by Ex.B-1 policy is proved from the evidence of
P.Ws.1 and 2 with reference to Ex.A-1 FIR and Ex.A-2 charge sheet no way
requires interference. Having regard to
the above, it is the 3rd respondent-Insurer along with the respondents
1 and 2 jointly and severally liable to pay compensation to the claimants and
then it is for the Insurer to recover from the respondents 1 and 2 of the claim
petition of the vehicle by filing execution petition in the same award without
need of any separate proceedings. Hence,
the award of the tribunal requires no interference with regard to the direction
against the 3rd respondent-Insurer to pay and recover from the
respondents 1 and 2 of the claim petition. Accordingly Point No.1 is answered.
POINT No.2:
7. Now coming to the quantum of
compensation, the tribunal has rightly taken the monthly income of the deceased
who was a cooli at Rs.3,000/- per month. In fact, it was held by the Apex Court in Latha Wadhwa vs. State of Bihar[10]
in the absence of income proof, Rs.3,000/- p.m. to be taken. As the accident was taken place on 13.06.2008
i.e. after 7 years of said expression, it can be taken at Rs.3,700/- per month.
If 1/3rd is deducted therefrom towards personal expenses of the deceased
as per Sarla Verma v. Delhi Transport Corporation[11]
as the claimants are husband and three major children, it comes to Rs.2466/-p.m.x12x13(as per Sarla
verma supra as the deceased was aged about 47 years by the time of accident) it
comes to Rs.3,84,696/-. Besides that, loss
of consortium to the 1st claimant is Rs.1,00,000/-, funeral expenses
of Rs.25,000/- and loss of estate of Rs.10,000/- even added to it vide Rajesh v. Rajbir Singh[12], it comes to
Rs.5,19,696/-. Thus, for no cross-objections by the claimants to enhance from
what the tribunal awarded of Rs.3,40,000/-, there is nothing to interfere,
including with regard to pay and recovery but for to clarify further.
Accordingly, Point No.1 is answered.
POINT -3:
8.
Accordingly and in the result, the appeal is disposed of with no costs
confirming the pay and recovery as passed by the tribunal with the directions
as follows:-
The 3rd
respondent-Insurer shall deposit said amount within one month from the date of
receipt of copy of this judgment and then to recover from the respondents 1 and
2, failing which the claimants can execute and recover. It is made clear from the settled expressions
of the Apex Court in United
India Insurance Co. Ltd. V. Lehru[13]
and Oriental Insurance Company Limited Vs. Nanjappan[14]
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 claimants (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 claimants, 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:
15.12.2014
Vvr.
