*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.457 of
2005
%
Dated 14.02.2014
Between:
# G.A.Lakshmi
...Appellant
and
$ Md.Abdul Quadar and another ….Respondents
! Counsel
for the Appellant : Sri Balaji Medamalli
^ Counsel
for respondent Nos.1&2 : dismissed
for default
Counsel for respondent No.3-
New India Assurance Company
Limited : None
appeared
< GIST:
>HEAD NOTE:
? Cases
referred:
1) 2011(8) SCC 142
2) 2009(1) SCC 558
3) 2013(1)ALD 644
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.457 OF 2005
JUDGMENT:
The claimant in the claim petition
O.P.No.1646 of 2001 under Section 166 of the Motor Vehicle Act, 1988 (for
short, ‘the Act’) filed this appeal, having been aggrieved by the
Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal–cum-III
Additional Chief Judge, City Civil Court, Hyderabad (for short, ’Tribunal’)
dt.09.12.2004, dismissing the relief of compensation of Rs.1,00,000/- as prayed
for the damages caused to her car bearing No.AP 9S 5569 against the respondents 1 to 3, driver, owner and Insurer
of the Crime Lorry bearing No. AP 12 T 4855.
2. Heard Sri Balaji Medamalli, the
learned counsel for the appellant The appeal against respondents 1 and 2(driver
and owner) is dismissed for default vide court orders dated 02.01.2012. The respondent
No.3-insurer served with notice but called absent with no representation. Taken
as heard the 3rd respondent for his absence to decide on merits and
perused the material on record. The
parties hereinafter are referred to as arrayed before the Tribunal for the sake
of convenience in the appeal.
3. The contentions in the grounds of appeal as well as submissions
during course of hearing in nutshell are that the award of the Tribunal is
contrary to law, weight of evidence and probabilities of the case, that the
Tribunal failed to see that since the Ex.B.1 policy issued in respect of the
crime lorry the change in the ownership of lorry does not vitiate the policy,
that Tribunal ought to have seen that as on the date of accident the policy of
crime vehicle is in force and ought not to have gone into the ownership aspect
of the lorry that the Tribunal ought to have seen that there is no need of
transfer of policy in favour of the owner of the vehicle whenever there is
change in ownership and the insurance policy will be issued in the name of the
owner as on the date of policy, that Tribunal ought to have seen that there is
no denial on the part of the respondents that the vehicle is not validly
insured, that ought to have seen that Ex.X.1 clearly shows that the car was
given on hire and as such the finding is baseless. Hence, to set aside the
award of the Tribunal.
4. Now
the points that arise for consideration in the appeal are:
1.
Whether
the award of the Tribunal is unjust and unsustainable and requires interference
by this Court while sitting in appeal against the award and if so to what extent
to arrive a just compensation and with what rate of interest with what
liability?
2.
To what result?
POINT-1:
5.
The facts of the case are that on 07.03.2000 at about 10.30 p.m. a lorry
bearing No.AP 12T 4855 belongs to the 2nd respondent and insured
with the 3rd respondent covered by Ex.B.1 policy, being driven by
its driver-1st respondent in rash and negligent manner in high speed
dashed against the Maruti Esteem car bearing No.AP9S 5569 of the claimant, as a
result the car extensively got damaged, and the claimant got the same repaired
with the Varun Motors Work Shop, Balanagar, Hyderabad and incurred an amount of
Rs.84,045/- towards repairs. The Tribunal from the evidence of P.Ws.1 to 3 and
R.W.1 employee of Insurer with reference to Exs.A.2 to A.5 bills, Ex.A.6
payment receipt and A.7 gate pass besides Ex.A.8 photos with negatives in this
regard believed the damages caused to the car of the claimant but not believed
that she hired her car to her husband and earned income prior to the accident
and also further held that the claimant failed to prove the 1st
respondent is driver of the crime lorry and even Ex.A.1FIR not shown the name
of the driver of crime lorry and no charge sheet is filed and further held that
as per Ex.B.1 policy the 2nd respondent is not owner of the crime
lorry and unless the original owner of the crime lorry is made party and
liability is fixed, the 3rd respondent cannot be made liable to pay
any compensation and hence dismissed the claim petition. It is by impugning the
same, the present appeal is filed. In
fact, the evidence of R.W.1 Administrative Officer of the Insurance Company-R.3
is that the Insurer issued policy of the lorry goods carriage to one Mahd.
Fazuluddin subject to limitations and the policy is not in the name of 2nd
respondent and thereby the Insurer is not liable to pay compensation unless
proved cause of accident was due to negligent driving of the vehicle and any
liability otherwise cannot be more than Rs.6,000/- under Section 147(2)(B) of
the Act and policy terms and conditions. In the cross-examination, he deposed
that even after transfer of ownership of vehicle insured, the validity of the
policy continues till expiry of the whole period of the policy and third party
is entitled to claim compensation for damages to the property. He deposed that since the policy Ex.B.1 is an
Act policy liability of the Insurer is limited to Rs.6,000/- or if the
actual expenditure is less to it only such
amount. Therefrom the very policy in
force covering the risk under Act policy to sum of Rs.6,000/- not in dispute
but for to say the transfer of the vehicle from the original owner who obtained
the policy by name Md. Fajuluddin to the present 2nd respondent-Madhusudhan
Gaikwad if at all not intimated to the Insurer.
It is in fact, the Apex Court in Uttarpradesh
State Road Transport Corporation Vs. Kulsum[1]
held that the owner of the vehicle even without intimation to the Insurer
of the policy, given the vehicle on hire on transfer, that is not a breach of
non-intimation of hire or transfer so allowing as policy covers risk to
indemnify by the Insurer by referring earlier expression in United Insurance of India Vs.Santrodevi[2]
and that was also reiterated by FB
expression of this Court in APSRTC Vs.
B.Kanakaratnabai[3].
In the claim petition, the
respondent Nos. 1 and 2 remained ex-parte and did not even choose to say
the 2nd respondent is not the owner.
What the 3rd respondent –Insurer contested was there is
breach of terms of policy to exonerate the Insurer and the Insurer has to
ascertain whether policy issued to the 2nd respondent of the claim
petition for the said lorry. He did not
deny liability from policy much less pleaded as Act policy but for saying there
is breach of terms of the policy and he has to verify whether the policy issued
(transfer effected) in the name of 2nd respondent in the claim
petition. Thus, from the very evidence supra, the policy covers the risk leave
about for the third party liability and Act policy is to be confined to
Rs.6,000/- to decide. As per the very
FIR Ex.A.1 which is the report given by the husband of the claimant that while
he was travelling from Ameerpet to Secunderabad driving the car after crossing
NTR Statue at S.P.Road on left side the crime lorry while overtaking from the
right side of the car and hit by virtue
of which he lost control and lorry dashed engine of the car and caused damage
to the car. From what is stated supra, a
owner can use the vehicle or even permit any person with driving licence to
drive even the driver was husband of the owner, it is on behalf of the owner
and not as third party to the car. Here,
the claim is not against Insurer of the car is thus but against the lorry
driver, owner and Insurer. The claimant-owner
of the car is third party in entitlement to the claim. The police registered FIR pursuant to it
sufficient to say there is an accident and the evidence of P.W.1 as well as her
husband-P.W.2 and another witness P.W.3 in this regard in proof of the rash and
negligent driving of lorry which dashed the car is crystal clear. There is
nothing for the Tribunal to disbelieve said evidence much less not to rely or
to say the so called owner referred in the policy not shown as a party to the
claim to exonerate the Insurer. Once the
claimants say 2nd respondent is the owner to whom the vehicle is
transferred from the original owner who insured the vehicle and 2nd
respondent not disputed the fact and even for the 3rd respondent to
say the vehicle is not transferred, not chosen to seek RTA record of effected
transfer or not but for simply relied on the policy referring the name of owner
by then there is no basis to negate the claim of the claimant by the lorry
Insurer.
6. Now coming to the quantum of compensation
concerned, the Ex.B.2 to B.5 repair bills covered by Ex.B.6 payment receipt are
for a sum of Rs.84,045/-. The invoice as well as the receipts for the amounts
shown received by Varun Motors- an authorized dealer of the Maruthi Cars, where
the car is repaired proves from the same so also of the factum of the gate pass
of Varun Motors, of the car taken to their shed for the repairs covered by
repairs order 002070 dated 10.06.2000 and the accident was dated
08.03.2000. There is nothing from the
owner or Insurer to say the said bills are excessive or uncorrelated. Ex.B.1 is the policy which shows Act policy.
Under the Act, the limit of liability to the third party vehicle damage is
Rs.6,000/-. Thus to that extent the 3rd party-Insurer has to
indemnify the 2nd respondent-owner and 1st
respondent-driver of the vehicle to the claimant to pay compensation and the
rest, the claimant is entitled from the respondents 1 and 2 personally.
Accordingly Point No.1 is answered.
Point No.2:
7. In the result, the
appeal is partly allowed by fixing joint and several liability to the extent of
the risk covered by Ex.B.1 policy against the driver, owner and Insurer (Respondent
Nos.1 to 3) to pay to the claimant Rs.6,000/-(Rupees Six thousand only) and for
the remaining Rs.78,045/-(out of Rs.84,045/-), the claimant to recover from the
respondent Nos. 1 and 2 (driver and owner of the lorry). The respondents are
directed to pay or deposit respective sums if not deposited any amount out it
otherwise for the balance to the extent of liability supra within one month.
Failing which the claimant can execute and recover. There is no order as to
costs.
8. Consequently, miscellaneous
petitions, if any, pending in this appeal shall stand closed.
_______________________
Dr. B. SIVA SANKARA
RAO, J
Date:14-02-2014
VVR
Note: L.R. copy to be marked: Yes/No
