* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.761 of 2009
%19.09.2014
Between:
New India Assurance Co. Ltd.
Rep. by its Senior Divisional Manager, HDCT Complex, R.S. Road, Kurnool. ... Appellant AND Md. Isaq @ Esamiya and others. ….
Respondents ! Counsel for Appellant : Sri V. Ajay Kumar ^ Counsel for Respondent No.1 : Sri Bajrang Singh Thakur < Gist:
> Head Note:
? Cases referred:
1) (2006) 4 Supreme Court Cases 250
2) 2008 ACJ 2860 (SC)
3) 2011 ACJ 2828 (AP)
4) AIR 2004 SC 1531
5) 2013 (5) ALD 62 (SC)
6) (2010) 10 Supreme Court Cases 458
7) 2013 (2) ALD 799
8) 2014 ACJ 1123 (Madras)
9) 2012 ACJ 2391 (Karnataka)
10) 2014 ACJ 1540 (Delhi)
11) 2011 ACJ 2418 (SC) THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.761 of 2009
JUDGMENT:
Aggrieved by the Award dated 21.10.2008 in OP No.470 of 20016 passed by the Chairman, M.A.C.T-cum-District Judge, Mahabubnagar (for short “the Tribunal”), the 2nd respondent in the OP/ New India Assurance Company Limited preferred the instant MACMA.
2a) On factual side, on 19.05.2005 when the claimant was driving the Auto bearing No.AP 22 U 7519 towards Mahabubnagar from A1-Madina College, an auto bearing No.AP 22 U 5132 came in the opposite direction and dashed the petitioner’s auto, due to which both the autos fell into a ditch. Thereby, the petitioner sustained fracture of left femur and left leg and patella of his left leg was completely broken, besides crush injury to both hands. Therefore, the claimant filed OP No.470 of 2006 initially against respondents 1 and 2, who are the owner and insurer of the offending auto (AP 22 U 5132) and later added R3 and R4, who are the owner and insurer of auto bearing No.AP 22 U 7519 and claimed Rs.5,00,000/- as compensation.
b) R1 appeared in person and expressed no objection to pass decree. R3 remained ex-parte, whereas R2 filed counter and opposed the claim. R4 adopted the same.
c) R2/Insurance Company filed counter and opposed the claim inter alia contending that the drivers of both the autos had no valid driving licence at the time of accident. R2 contended that claim is highly excessive and prayed to dismiss the OP.
d) During trial, PWs.1 to 3 were examined and Exs.A1 to A12 were marked on behalf of the claimants. RW1 was examined and Exs.B1 to B5 were marked on behalf of the respondents.
e) A perusal of the award would show that the Tribunal having regard to the oral and documentary evidence has held that the offending auto driver was responsible for the accident. Sofaras compensation is concerned, the Tribunal granted Rs.2,70,000/- with costs and interest @ 7.5% per annum under different heads as follows:
Permanent disability & future loss of earnings Rs. 1,43,953-00 Medical expenses Rs. 1,25,496-00 Pain and suffering Rs. 551-00 Total Rs. 2,70,000-00 Hence, the appeal by the New India Assurance Company Limited.
3) The parties in this appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri V.Ajay Kumar, learned counsel for appellant/ Insurance Company and Sri Bajarang Singh Thakur, learned counsel for respondent No.1/claimant. Notice sent to R2 and R3 was served but there was no representation, hence treated as heard.
5) Impugning the award, learned counsel for appellant firstly contended that the Tribunal erred in holding that the owner-cum- driver of the offending auto had valid driving licence by the date of accident but in fact Ex.B.3—driving licence copy which is equivalent to Ex.A.5 would clearly show that the driver—B.Gopal had driving licence to drive auto rickshaw (transport) from 04.04.2000 to 03.04.2004 only whereas the accident was occurred on 19.05.2005 by which date his driving licence was not renewed. As per Ex.B.4 he got renewed his transport driving licence only on 21.05.2005 upto 20.05.2008. He submitted that the Tribunal failed to appreciate the above documentary evidence properly. Since he himself was the owner-cum-driver, it was evident that knowingly he drove the vehicle without having valid and effective driving licence on the date of accident. In view of clear violation of terms of the policy, he argued, the appellant/Insurance Company has to be exonerated from its liability. On this aspect, he relied upon the following decisions:
1) National Insurance Co. Ltd. vs. Kusum Rai and [1] others
2) National Insurance Co. Ltd. vs. Vidhayadhar
[2]
Mahariwala and others
3) New India Assurance Co. Ltd. vs. G. Sampoorna and
[3]
others He thus prayed to allow the appeal.
6 a) Per contra, while supporting the award insofar as Tribunal fixing liability on the appellant/Insurance Company jointly with the owner, learned counsel for 1st respondent/claimant argued that the Tribunal rightly held that the driver had valid driving licence by the date of accident. Even assuming that his licence was not renewed by the date of accident, that does not mean that he did not know the driving of auto rickshaw (transport) and it cannot be said that the accident was occurred due to his lack of driving skill. Just because of non-renewal of the licence, the Insurance Company cannot repudiate its liability when the policy was in force and claim is that of a third party. He submitted that in the light of the decisions of Apex Court reported in National
[4]
Insurance Co. Ltd. v. Swaran Singh a n d S.Iyyapan vs.
[5]
United India Insurance Co. Ltd and another , the appellant/ Insurance Company can at best seek for the order of pay and recover.
b) Secondly, regarding the quantum of compensation he submitted that the Tribunal awarded a meager amount of Rs.2,70,000/- as against the claim of Rs.5,00,000/- and therefore, the claimant is entitled to Rs.5,00,000/- as originally claimed by him. Learned counsel submitted that though the claimant has not challenged the quantum of compensation by preferring an independent appeal, still he filed MACMA MP No.3263 of 2014 under Order 41 Rule 33 of CPC seeking enhancement of compensation up to original claim and therefore, this Appellate Court can consider his request. In this regard, he relied upon the following decisions:
1) Pralhad and others vs. State of Maharashtra and [6] another
2) National Insurance Co. Ltd, Rajahmundry vs. M.
[7]
Natarajan and others
3) Oriental Insurance Co. Ltd. vs. Mariam Shanthi David [8] and others
4) New India Assurance Co. Ltd. vs. M. Prabhu and [9] another
[10]
5) National Insurance Co. Ltd. vs. Komal and others
7) As a reply, learned counsel for appellant/Insurance Company argued that the claimant cannot seek enhancement of compensation awarded by the Tribunal even to the extent of original claim without filing an independent appeal or cross- objections. He relied upon Ranjana Prakash and others vs.
[11]
Divisional Manager and another .
8) In the light of above rival arguments, the points for determination in this appeal are:
1) Whether the Tribunal was justified in mulcting the appellant/Insurance Company with liability?
2) Whether the claimant is entitled to seek for enhancement of compensation even to the extent of his original claim in the appeal of Insurance Company without his filing independent appeal or cross-objections?
3) To what relief?
9 ) POINT No.1: Admittedly, R1—B.Gopal is the owner-cum- driver of crime auto bearing No.AP 22U 5132. We find his driving license particulars in Exs.A5, B3, B4 and B5. Ex.A5 and B3 are similar documents. Ex.A5 would show that he was holding driving license other than transport with effect from 06.02.1999 to 05.02.1019, whereas he had driving license to drive autorikshaw (transport) from 04.04.2001 to 03.04.2004. Then, Ex.B4 would show R1 got renewed his transport driving license from 21.05.2005 to 20.05.2008. Since the claimant’s vehicle is autorikshaw (transport), driving license relating to that class of vehicle is relevant for consideration. As can be seen from the record, his transport driving license was not in effect from 04.04.2004 to 20.05.2005, since he has not got renewed his license during that period. Admittedly, the accident was occurred on 19.05.2005. Hence, by that date his driving license relating to autorikshaw (transport) was not in force. It may be noted that in Ex.B5 driving license card though it was mentioned that he was holding license for transport autorikshaw valid upto 20.05.2008, it was not mentioned as to when he got renewed that license. The renewal particulars are furnished in detail in Exs.A5, B3 and B4. Be that it may, the Tribunal misread the above evidence and erroneously held as if R1 possessed valid driving license for transport vehicle by the date of accident. Hence, its finding cannot be countenanced. R1 being the owner-cum-driver of the crime vehicle, he cannot plead ignorance about lack of valid and effective driving license by the driver. To that extent it can be said he has committed breach of terms of policy. This is one aspect. Coming to the other side, by no stretch of imagination it can be said that the non-renewal of driving license was fundamental cause of the accident because record shows R1 possessed valid driving license for similar type of vehicle for a considerable period. Above all, the claim is that of a third party and policy was in force by the date of accident. In these circumstances, the pertinent question is whether the Insurance Company has to be totally exonerated from the liability or it shall be directed to pay compensation and recover from the owner. No doubt, in Kusum Rai and Vidhayadhar Mahariwala cases cited by the appellant (1 and 2 supra) particularly, in Vidhayadhar Mahariwala’s case (2 supra) in similar circumstances the Insurance Company was exonerated for breach of terms of the policy. However, in the latest decision in S.Iyyappan’s (5 supra) the Apex Court on perusal of several decisions including Swaran singh’s case (4 supra) and Kusuma Rai’s case (1 supra) ordered Insurance Company to pay and recover, finding breach of the policy. It observed thus:
“ xx xx.. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.”
Therefore, in the instance case, in the interests of justice I hold the appellant/Insurance Company shall at first pay compensation to the claimant and then recover the same from the owner. This point is answered accordingly.
10) POINT No.2: This point is concerned, the Tribunal awarded Rs.2,70,000/- with costs and interest @ 7.5.% per annum as against the claim of Rs.5 lakhs. Admittedly, the claimant has not preferred any appeal or cross-objections seeking enhancement of compensation but he filed MACMA MP No.3263 of 2014 under order XL1 Rule 33 CPC for enhancement of compensation upto his original claim. His argument is that though he did not prefer any independent appeal or cross- objections, still by Order XLI rule 33 CPC he can seek for enhancement of compensation upto the extent of his original claim. This argument, I am afraid, is not tenable.
In Ranjana Prakash’s case (11 supra) the Supreme Court has clearly laid down the extent of power of appellate Court under XLI Rule 33 CPC in a motor accident claims appeal. It observed thus:
“Para 7: This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the Respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non- grant of relief against the insurer. Be that as it may.”
Therefore, it is clear that Order XLI Rule 33 CPC cannot be invoked to grant larger or higher relief than the one ordered by the lower Tribunal. The Apex Court further held that in an appeal filed by the Insurance Company compensation cannot be enhanced in favour of the claimants. It observed thus:
“Para 8: Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”
When the above observation is applied to the instant case, the Insurance Company has not challenged in its appeal the compensation awarded by the Tribunal. So, this appellate Court need not reduce the compensation since there is no such challenge. Enhancement is concerned, even if assuming that this appellate Court finds that claimant deserves more compensation than awarded by the Tribunal, the same cannot be granted for want of appeal or cross-objections by the claimant. Therefore, petition—MACMA MP No.3263 of 2014 and the argument of the claimant cannot be appreciated. The said petition is liable to be dismissed. The decisions cited by the claimant seeking enhancement also cannot be accepted in view of Apex Court decision in Ranjana Prakash’s case (11 supra), which is applicable with all its force. This point is answered accordingly.
11) In the result, this MACMA is partly allowed and ordered as follows:
(a) The appellant/Insurance Company is directed to pay compensation awarded by the Tribunal to the claimant at first and then recover the same from the owner/R1 in OP. Pending appeal if the appellant/Insurance Company has paid any compensation, it can recover the same from the owner/R1 in OP but not from the claimant.
(b) The appellant/Insurance Company shall deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against it.
(c) No order as to costs in the appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 19.09.2014
Note: LR Copy to be marked: Yes/ NO Murthy/scs
[1] (2006) 4 Supreme Court Cases 250
[2] 2008 ACJ 2860 (SC)
[3] 2011 ACJ 2828 (AP)
[4] AIR 2004 SC 1531
[5] 2013 (5) ALD 62 (SC)
[6] (2010) 10 Supreme Court Cases 458
[7] 2013 (2) ALD 799
[8] 2014 ACJ 1123 (Madras)
[9] 2012 ACJ 2391 (Karnataka)
[10] 2014 ACJ 1540 (Delhi)
[11] 2011ACJ2418 (SC)