HON’BLE Dr. JUSTICE B. SIVA SANKARA RAO M.A.C.M.A. Nos. 3310 and 3998 of 2012 Dated: 24.01.2014 M.A.C.M.A.No. 3310 of 2012 Between:
The United India Insurance Co.Ltd., Rep. by its Branch Manager, Karimnagar District.
… Appellant/Respondent No.4 And Siraveni Santhosh and three others.
....Respondents M.A.C.M.A.No. 3998 of 2012 Between:
The United India Insurance Co.Ltd., Rep. by its Branch Manager, Karimnagar District.
… Appellant/Respondent No.4 And Bommaraveni Pushpalatha and five others.
....Respondents HON’BLE Dr. JUSTICE B. SIVA SANKARA RAO M.A.C.M.A. Nos. 3310 and 3998 of 2012 COMMON JUDGMENT :
M.A.C.M.A.Nos. 3310 of 2012 and 3998 of 2012 are filed against O.P.Nos.134 of 2008 and 133 of 2008 respectively.
2. O.P.No.133 of 2008 filed by legal representatives i.e., wife and parents of the deceased Bommaraveni Kanakaiah, driver of Tata Mini Van bearing No.AP 15 X 4221, for his death in the accident dated 05.04.2007 involving another lorry bearing No.AP 28 T 5632 belongs to the claim petition, 3rd respondent insured with 4th respondent, while both vehicles proceeded in opposite direction.
3. It is against the claim of Rs.10,00,000/-, the Tribunal awarded Rs.4,38,500/- with interest at 7 ½ % per annum against the lorry owner and insurer i.e., respondents 3 and 4 of the claim petition, by holding that the accident was the result of the rash and negligent driving of the lorry driver alone, for no fault of the Mini Van driver i.e., deceased. However, by observing that the driver of the lorry was one S. Sadanandam, whereas in the M.V.I. Report, the licence No.193/81, covered by Ex.B-2 through evidence of RW-1 speaks that the licence belongs to one Mohd.Yousuf and not of the driver of the lorry ie., S.Sadanamdam, that the M.V.I. either intentionally or inadvertently furnished the particulars of licence or it is a fake licence and there from also the insurer if not to be exonerated totally, only be made liable with a direction to pay and recover under Section 149 read with 168 of the M.V.Act.
4. Coming to the other appeal covered by O.P.No.134 of 2008, the cleaner of said Mini Van for the injuries sustained, claimed Rs.1,00,000/- that was partly allowed for Rs.49,424/- with interest at 7 ½ % per annum with the same observations and same directions.
5. It is by impugning the legality and correctness of said respective two awards of the Tribunal, the appellant- insurer of the lorry i.e., United India Insurance Company Limited preferred the appeals, showing the claimants of the deceased driver Kanakaiah as respondents 1 to 3, van owner as R-4, van insurer as R-5 and the lorry owner as R-6 in M.A.C.M.A.No.3998 of 2012 and similarly in the M.A.C.M.A.No.3310 of 2010 claimant as R-1, the owner and insurer of the van and the owner of the lorry as R-2 to R-4 respectively; The appeal against the owner of the lorry for non-service of notice ended in dismissal. In fact as can be seen from the two impugned awards of the Tribunal respectively, the owner of the lorry remained ex parte even before the Tribunal. Thereby the appeals are maintainable.
6. The common contentions in both appeals by the insurer of the lorry are that the awards of the Tribunal are contrary to law, weight of evidence and probabilities of the case, that it went wrong in fixing total negligence on the lorry driver instead of holding composite negligence of driver of both vehicles apart from non-exonerating the insurer-appellant of the lorry from liability for no licence possessed by the lorry driver. In the course of hearing, counsel for the appellant reiterated the said contentions.
7. The counsel for the appeal- respective respondent insurer of the van contended that the Tribunal rightly came to the conclusion of driver of the lorry is totally negligent and there is no contribution on the part of the van driver i.e., deceased that as such for this Court while sitting in appeal, there is nothing to interfere to mulcted the van owner and insurer with any liability though the van owner did not choose to contest the appeal.
8. It is the contention of the respective claimants as respective respondents to the two appeals that, the quantum of compensation awarded by the Tribunal though on other aspects is just, requires interference, as the Tribunal as well as this Court are entitled to fix just compensation even without cross-objections and that the quantum requires enhancement as laid down by a Single Judge of this Court earlier in APSRTC, Musheerabad V.
[1]
Patan Shamshad Begum and others .
9. Now the points that arise for consideration in deciding the two appeals are that:
1. Whether the awards of Tribunal fixing liability against the insurer of the lorry, with the finding of lorry driver alone was negligent with no fault of deceased - van driver, out of the two vehicles involved, is unjust as contended by the appellant- insurer of the lorry?
2. Whether the quantum of compensation awarded is not just and requires enhancement without even cross-objections as contended by the claimants as co-respondents to the appeal?
3. To what result?
10. POINTS No.1 & 2:-
10(A): As the points 1 and 2 are inter-related to each other, they are taken up together.
10(B): Before coming to pay and recover liability and any contributory negligence on the part of the deceased van driver and the lorry driver concerned, it is just to answer the contentions raised by the claimants as respondents, by referring to the above cited expression of this Court saying, without even cross-objections by claimants in the appeal filed by vehicle insurer/owner, the compensation to be awarded is just by enhancing. No doubt the compensation to be fixed is just. However, the powers of the Tribunal are different to the powers of the appellate Court so far as the claims under the M.V.Act concerned. Even entire matter is at large in deciding the appeals by this Court against the awards of the Tribunal and it can exercise its power to render complete justice between the parties within the power under Order XLI Rule 33 and 24 of C.P.C., as clearly laid down by the Apex Court in Ranjana Prakash V. Divisional
[2]
Manager by referring to earlier expressions; but for to allow the claimants as respondents to the appeal, filed by insurer or owner of the vehicle to defend the quantum awarded by the Tribunal on one ground or other, neither the claimants can contend without cross-objections nor the appellate Court can enhance without cross-objections, beyond what the amount the Tribunal awarded. Thus, in view of the settled law of the land; the judgment of this Court cited is no longer good law.
10(C): Coming to the contention regarding any contributory negligence on the part of the van driver – deceased in O.P.No.133 of 2008 concerned, a perusal of the evidence on record, more particularly of PWs.1 to 3 of whom PW-2 is no other than the injured- cleaner-claimant in O.P.No.134 of 2008 together with the F.I.R, Charge sheet, Postmortem Report, M.V.I report, scene of observation and rough sketch, Exs.A-1, A-2, A-4 to A-6, proves that the accident was the result of the total negligence on the part of the lorry driver, for no fault of the opposite coming van driver (deceased) for the two vehicles colluded, wherein said van driver met with death and van cleaner sustained injuries. The same since rightly arrived by the Tribunal supported by reasons, for this Court while sitting in appeal from any said contention in the grounds of the appeal, there is nothing to interfere and thereby that contention is liable to be negated and accordingly negated.
10(D) Now coming to the contention of the appellant-insurer that the non liability for the driver for not having valid driving licence, was not properly considered by the Tribunal concerned. Ex.B-2 is the driving licence coupled with Ex.B-3 notice to produce the particulars, acknowledgement Ex.B-4 and Ex.A-4 Motor Vehicle Inspector Report and Ex.A-2 charge sheet, in all one voice including the evidence of RW-1 with reference to the above speak that the said driving licence is taking one and lorry driver is no valid driving licence, as the licence particular No.193/1981 stands in the name of Mohd. Yousuf that was valid up to 21.09.2009 issued by the R.T.I., Karimnagar and it is not in the name of the driver of the lorry, Sadanandam and in the M.V.I. report while mentioning the driver as Sadanandam. The particulars mentioned in the licence of Yousuf ie., Ex.B-2 clearly proves not that of Sadanandam. However, the Tribunal observed that the name of licencing authority issued licence for Sadanandam might have been wrongly mentioned and the insurer contention cannot be accepted as the driver was not charged in the charge sheet for not having valid driving licence to give any credence to said contention. The Tribunal went wrong and so observing despite the only requirement to furnish the particulars of licence by Ex.B-3-notice, acknowledged by Ex.B-4 failed to produce with no response and no contest to draw the adverse inference that but for no licence to the driver, he could have produce the particulars and also but for fact of the particulars of the licence mentioned belongs to Yousuf and not of Sadanandam as of Sadanandam is fake. When such is the case, RW-1 speaks of by filing Ex.B-2 licence particulars obtaining certified copy in proving the factum of it is a fake licence. Nothing more is required in discharge of the burden on the insurer, which is the trial Court not properly appreciated. No doubt, there is nothing to say that the owner intentionally with conscious knowledge, allowed the driver with no licence or based on fake licence. In the factual matrix, it is a fit case for pay and recover including from the settled expressions of the Apex Court in National Insurance Company Limited Vs.
[3]
Swaran Singh & Others , United India Insurance Co.
[4]
Ltd. V. Lehru , Oriental Insurance Company Limited
[5]
Vs. Nanjappan & Others , Kusumlatha and others V.
[6]
Satbir and Others and S.Iyyappan Vs. United India
[7]
Insurance Company . Even coming to the quantum, there is nothing to reduce the quantum arrived by the Tribunal even in O.P.No.133 of 2008. accordingly, points 1 and 2 are answered.
POINT -3:
11. Accordingly and in the result, both the appeals are partly allowed by modifying from joint and several liability of the insurer and owner of the lorry bearing No.AP 28 T 5632 to pay by the insurer and then to recover from the owner. The respondents shall deposit said amount within one month, failing which the claimant can execute and recover. It is made clear from the settled expressions of the Apex Court in Lehru (supra) & Nanjappan (supra) that the insurer of the lorry is entitled, while depositing the amount payable, if not deposited or paid any amount so far while depositing the balance, 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.
12. As a sequel, Miscellaneous Petitions, if any in these M.A.C.M.As. shall stand closed.
24th January 2014. mar
[1]
2001 ACJ 1399
[2]
2011)(8) Scale-240
[3]
Dr. B. SIVA SANKARA RAO, J
[4]
[5]
[6]
[7]
(2004) 3 SCC 297=2004-ACJ-1 JT-2003(2) SC 595 = 2003 ACJ 611 (2004) 13 SCC 224=2004-SAR(civil)-290 AIR 2011 SC 1234 = 2011 (2) SCJ 639 (2013) 7 SCC 62