Civil Revision Petition No. 4410 of 2006 · High Court

Since all these four matters, the revision and the three appeals, involve common question, they are taken up together for disposal. The petitioner-appellant, who is the Insurance Company, namely, the New India Assurance Company Limited, Kurnool, filed the revision under Article 227 of the Constitution of India and the appeals under Section 173 of the Motor Vehicles Act, 1988, inter alia, seeking to assail the common order dated 18.01.2006 in O.P.Nos.53, 55, 56 and 58 of 2001 on the file of the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Mahabubnagar, as against awarding compensation in respect of claims towards injuries in a motor accident.

Heard Sri T.Ramulu, learned Standing Counsel appearing on behalf of the petitioner-appellant-Insurance Company. Though served, none appears on behalf of the respondents-claimants. The facts, in brief, which are necessary for disposal of all these four matters, are that on 10.10.2000, the tractor and trailor bearing Nos.AP-22T-7644 and AP-22T-7645, which was engaged transporting paddy, reached near Kodangal, the driver of the tractor drove it in negligent manner, as a result, the vehicle fell turtle causing injuries to the respondents-claimants, who were traveling on the top of the tractor sitting on the paddy load. The driver of the tractor was prosecuted in a criminal case for the injuries received by the claimants. The said claims were contested by the appellant herein, inter alia, denying their liability in spite of the fact that the vehicle involved in the accident was not supposed to carry any passengers, especially the same being transport vehicle for commercial use but not for passengers use.

During the course of trial, both the sides let in evidence and on appreciation thereof, the Court below having held that there is rash and negligence on the part of the driver of the tractor, partly allowed the claims of the claimants individually. Though it was held that the appellant is not primarily liable as such, in view of the fact of commercial use by the owner of the vehicle, which is not permissible one, directed the appellant company to pay the amounts, initially and realize the same from the owner of the vehicle, i.e., the second respondent. Hence, the revision and the appeals. Learned Standing counsel appearing on behalf of the petitioner- appellant by placing reliance on the decision reported in National Insurance Co. Ltd., v. Bommithi Subbhayamma and others[1], submitted that having regard to such impermissible use of the vehicle by the owner, the Insurance Company gets absolved and cannot be made liable and therefore, the Court below erred in giving such direction.

Having considered the submissions made and on perusal of the material available on record, the only point that arise for consideration is as to whether in the facts and circumstances of the case, any such direction is permissible or not. There is no dispute in regard to the chequered events and ultimately, the factum of the claimants suffering injuries and also awarding compensation, though partly, and even there being no dispute by the appellant in respect of such quantum and the impermissible use of the vehicle on the part of the owner, it has to be seen that accepting the non-liability of the appellant-Insurance Company, whether such direction can be made for initial payment by the appellant can be recovered. No doubt, in most of the cases it is being stated that even wherever the liability is found joint and several, it is to be directed that the amount to be paid by the Insurance Company, initially and then to recovery from the owner.

In the aforesaid decision, reliance was placed by the appellant wherein the Apex Court considered the very same aspect and ultimately, held that the Insurance Company is not liable and has given a categorical direction to the following effect.

In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This appeal allowed. We, however, make it clear that the claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Accidents claims Tribunal from the owner of the vehicle. No costs.

In view of the aforesaid direction, the Insurance Company cannot be made liable whether legally or otherwise. Following the same, the revision and the appeals are partly allowed to the extent of setting aside of direction to the petitioner- appellant to pay the compensation in the first instance and to recover from the owner.

It is also made clear that the respondents-claimants are entitled to recover the amounts, which have been awarded by the Court below from the owner of the vehicle. Further, it is also made clear that the petitioner-appellant is entitled to recover any amounts paid by it during the pendency of these proceedings in terms of the interim orders from the owner of the vehicle. No costs. _________________ (B.PRAKASH RAO, J) 27th August 2010 RRB [1] 2005 ACJ [II] 721