* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.1039 of 2009
%05.06.2014
Between:
National Insurance Company Limited Rep. by its Branch Manager, Nellore. .... Appellant AND Leguntapati Sri Venkateswara Rao and another. ….
Respondents ! Counsel for Appellant : Sri K. Sitaram ^ Counsel for Respondent No.1 : Sri M.S.R. Chandra Murthy < Gist:
> Head Note:
? Cases referred:
1) 2013 (1) ALD 233
2) AIR 2004 SC 1531
3) AIR 2012 Ker. 116 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.1039 of 2009
JUDGMENT:
Challenging the Award dated 24.11.2008 in O.P.No.270 of 2003 passed by the Chairman, M.A.C.T-cum-V Additional District Judge, Nellore (for short “the Tribunal”), R2/Insurance Company preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 15.05.2002 at about 10:30 AM, when he was proceeding on his Bajaj Chetak scooter bearing No.AP 26D 5806 and after crossing East Cabin Booking Office at Nellore, one auto bearing No.AP 26 U 1146 being driven by its driver at high speed and in a rash and negligent manner, came in the wrong side and dashed the scooter of the claimant. Thereby, the claimant fell down and sustained grievous injuries. Immediately he was taken to the Government Hospital, Nellore, later he was shifted to private hospital for better treatment. It is averred that the accident was occurred due to the rash and negligent driving by the driver of auto. On these pleas, the claimant filed O.P.No.270 of 2003 against respondents 1 and 2, who are owner and insurer of the offending auto and claimed Rs.1,00,000/- as compensation under different heads mentioned in the O.P.
b) Respondent No.1 remained ex parte.
c) Respondent No.2 filed counter and opposed the material averments made in the O.P and urged to put the claimants in strict proof of the same. R2 denied the policy and contended that the driver had no valid driving licence. It further contended that the compensation claimed is highly excessive and untenable and thus prayed to dismiss the OP.
d) During trial P.Ws.1 and 2 were examined and Exs.A1 to A12 and Ex.C1 were marked on behalf of claimant. R.Ws.1 and 2 were examined and Exs.B1 and B2 were marked on behalf of respondents.
e) A perusal of the Award would show that the Tribunal having relied upon the oral evidence of PW.1 coupled with Ex.A1–FIR, Ex.A2—wound certificate and Ex.A3–charge sheet held that the accident was occurred due to the rash and negligent driving by the driver of the offending auto.
f) Issue No.2 which relates to quantum of compensation, the Tribunal awarded compensation of Rs.75,000/- together with proportionate costs and interest at 7.5% p.a from the date of O.P till the date of realization under different heads as below:
For grievous injuries Rs. 30,000/-
Partial disability Rs. 10,000/-
Pain and suffering Rs. 10,000/- Medical expenses Rs. 20,000/-
Transportation and attendant charges Rs. 5,000/-
Total Rs. 75,000/-
Hence, the appeal by the Insurance Company questioning the quantum of compensation.
3) Heard Sri K.Sitaram, learned counsel for appellant/Insurance Company and Sri M.S.R.Chandra Murthy, learned counsel for R1/claimant. Respondent No.2/ owner of the auto remained ex parte before the Tribunal. Hence the matter is heard.
4) Learned counsel for appellant challenged the award mainly on the ground that the driver of the auto had no valid driving license by the date of accident i.e., he was only holding license to drive non-transport vehicles whereas the auto in question is a transport vehicle and hence for violation of terms of the policy, the Insurance Company is not liable for the claim of the claimant. Learned counsel argued that the Tribunal has not at all appreciated this contention and not discussed the same in its award. He thus, prayed to allow the appeal.
5) Per contra, opposing the appeal, learned counsel for the respondent/ claimant argued that the Insurance Company only took the plea in its counter that the driver of the auto had no valid and effective driving license and of course through Ex.B2—driving license extract, had established that the auto driver had license to drive only non- transport vehicles but not the transport vehicles. However, the Insurance Company has not taken plea in the counter that the owner of the auto committed breach of the terms of the contract by willfully entrusting the vehicle to auto driver. As such, the Insurance Company cannot avoid its liability as against the third party. At best, it may pay compensation and recover the same from owner of the auto. He relied upon the judgment of this Court in Oriental Insurance Company Limited vs. Banavathu Gopi
[1]
(died) per Lrs. And others .
6) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the Appellant—Insurance Company can disown its liability?”
7) POINT:
The accident, involvement of auto bearing No.AP 26 U 1146 and scooter bearing No.AP 26 D 5806 and claimant suffering injuries are admitted facts. The Tribunal held the auto driver guilty and awarded compensation against the owner and Insurance Company. The counter averments of 2nd respondent —Insurance Company before the Tribunal are that the driver of the auto had no valid and effective driving license as on the date of accident and hence the Insurance Company is not liable to pay any amount. In discharge of its burden, the Insurance Company summoned RW-1 and got produced the driving license of auto driver which would show that he was granted non- transport license to drive auto rikshaw for the period 30.09.2000 to 11.04.2019. The accident was occurred on 15.05.2005.
Thus, it is clear that he was holding only a non-transport driving license as on the date of accident. The auto being a transport vehicle he was not having valid and effective driving license. To this accident, there is no demur.
8) Now the point is whether on this count, the appellant— Insurance Company can disown its liability. In a similar case, a learned single judge of this Court observed that the driver had no valid driving license but there was no pleading on the part of the Insurance Company that the owner entrusted the vehicle to the driver knowingly. Then relying on National Insurance
[2]
Company Limited V. Swaran Singh and full bench decision of Kerala High Court in the case of Oriental Insurance
[3]
Company Limited vs. Joseph V.V. @ Johnny , held that the Insurance Company has to satisfy the award and recover the same from the owner of the vehicle.
9) Coming to the instant case, here also except taking a plea that the auto driver had no valid driving license, the appellant— Insurance Company has not taken a further plea to the effect that owner of the auto had knowingly entrusted the vehicle to the auto driver and thus committed the breach of the policy. So mere proving of the fact that the auto driver had only non-transport driving license will not enable the Insurance Company to repudiate its liability in the light of the principle enshrined in Swaran Singh’s case (2 surpa). Therefore, relying upon all the above decisions mentioned supra, I hold that it is a fit case to direct the appellant—Insurance Company to satisfy the award at first and recover the same from the owner of the vehicle since admittedly policy was in force and claimant is a third party.
In the result, this MACMA is ordered as follows:
i) The MACMA is dismissed with a direction that the appellant/ Insurance Company shall satisfy the award passed by the Tribunal in O.P. No.270 of 2003 and recover the same from the owner of the vehicle. It shall deposit the compensation amount within one month from the date of this judgment, failing which execution can be taken out.
ii) It is further clarified that if the appellant/Insurance Company has already paid or deposited any amount towards satisfying the award and withdrawn by the claimant, the appellant/Insurance Company shall only recover the same from the owner and not from the claimant.
iii) No order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 05.06.2014
Note: L.R Copy to be marked: YES / NO knl
[1] 2013 (1) ALD 233
[2] AIR 2004 SC 1531
[3] AIR 2012 Ker. 116