Heard liri v. Sambasiva Rao

Counsel for the Appellant: SRI' V SAMBASIVA RAO Counsel for the Respondents: None Appeared The Court made the following: JUDGEMENT --. HON'BLE SRI I JUSTICE LAXM NARAYANA AL ISHETTY M.A.C. M.A.NO.16sa oF 2024 JUDGMENT: Heard liri V. Sambasiva Rao, learned counsel for appellant- ihsurance company. No representation on behalf of the respondents despite servicr: of notice.

2. The prer;ent appeal has been filed by the appellant_insurance company challenging the award passed by the Chairman, Motor Accident Cla.ms Tribunal-cum-II Additionai District Tribunal)in M.V.O.p.No.43 4of 2OtA. seeking to set aside the award against the Judge, Adilabad(for short,

12.O8.2024,thr:reby insuraace com pany

3. The appellant herein is the respondent no.2_insuralce company, respondent no. I herein is the claim petitioner ald respondent no_ 2 herein is the owner of the Auto_crime vehicle For convenience, ttre parties hereinafter are referred to as they are arrayed before the Tribunal. 4 The brief tactual matrix of the presentappealis as under

4.1 On 29.O5.2Of7, at about 1.0O p.m., while the deceased along with his mother were travelling on motorcycle bearing No.Ap_2S_ AN 9580 from Aurad towards peddaGulla village, an auto bearing LNA,J MACMA No.1658 of 2024 2 No.TS- 16-UA-3315, driven in a rash and negligent manner 1n opposite direction with high speed and dashed the motor cycle of the deceased due to which the deceased and his mother fell dou'n from the motor cycle and the deceased sustained multiple fractures and grievous injuries all over the body'

4.2. The claimants, i.e., parents and brother of the deceased' have hled claim petition against the respondents l to 3 under Section 166 (1) (a) of Motor Vehicle Act 1989, before the Tribunal claiming compensation of Rs.3,0O,O0O /- along with interest from the date of petition till the date of realization'

4.3 [t is contended that deceased was hale and healthy' aged about 35 years and doing agriculture, milk and vegetable business and was earning Rs. 10,000/- per month artd used to contribute the same to the welfare of his family and due to sudden death' pe[itioners have iost their future hope love and affection of the deceased.

5. The respondent No. 1, who is the owner of crime vehicle remained ex-parte.

6. The 2nd respondent-Insurance Company filed counter denying the contents of the petition with regard to narration of 3 LNAJ MACMA No 1658 oJ 2024 accident. ag(t, avocation, income of the deceased arld further contending that driver of Auto_crime vehicle was not having valid driving licenses to drive the vehicles and that both the said vehicles were not roadworthy to ply as on the date of accident; that deceased hinLself is responsible for the accident ,,r,ho was triple riding on sairl motor cycle in rash alrd negligent marner and as such, the insured and insurer of the motor cycle are necessary parties to the case proceedings and therefore, the claim is bad for non-joinder of necessary parties ald is liable to be dismissed.

7. On the basis of the above pleadings, the Tribunal framed the following issue.s: i) Whether the accident occuned on due to rash and \e-7ligeryt driuing of the auto rikshau.t bearing /r'o. ?S_ 16-UA 3.) i S bg its d.riuer? ii) Wlether petitioner is entitled for compensation on account of injuies sustained. bg him, if so. to what omount trnd from uhich respondent? iii) To tuhat relief? In order to substantiate the case, on behatf of the claimants, petitioner No.1 himself examined as p.W. 1 arrd got marked Exs.A1 to A7. Doctor was examined as p.W.2. ald Exs.C1 and C2 were marked throuiJh him. The respondent No.2 got examined its Administrativc Ofhcer as R.W. 1 and got marked trxs.B1 to 83. The

8. 4 LNA,) MACMA No-1658 ol 2024 RTA Official was examined as RW.2 and Ex.4 was marked through

9. The Tribunal, on due consideration of the evidence arrd material placed on record, came to conclusion that accident took place due to rash and negligent driving of the crime vehicle ald awarded compensation of Rs.2,80,822/- directing the respondents 7 and 2 with costs arld interes[ @ 6'k per annum from the date of petition till the date of realization. Aggrieved by the same, the present appeal is hled

10. During the course of hearing of the appeal, learned counsel for appellant-insurance company contended that insurance company has also got examined R.W.1 and the RTA Official as R.W.2, who categorically deposed that the driver of the crime vehicle was not having driving license as on the date of accident. Despite ciear evidence on record, this aspect was not considered by the Tribunal and erroneously allowed the O.P. He further submitted that Tribunal completely erred and exceeded its jurisdiction and the order of the Tribunal is contrary to law ald as such, the order of the Tribunal is liable to be set aside on this ground alone. 5 LNA,1 MACMA No-1558 o12024 1 1. In supp,ort of his contention the learned Standing Counsel for appellant- insurance company placed reliance on the following decision: (i) Judgnrent of the Apex Court In Nationq.I Ins:.t rance Co. Ltd Vs. Sro(I,ran Singh and othersi.

12. On the tther hand, learned counsel for claimants submitted that the Tribunal, on due consideration ol the evidence ald material placed on record, had rightly awarded the compensation and the appelJalt failed to make out any case to interfere with the award passed by the Tribunal arrd finally, prayed to dismiss the appeal. Consideration:

13. The main contention of the appellant-insurance company is that insurance company is not liable to pay compensation lo the claimalts; thzLt the Tribunal erroneously and contrary to the pleadings, oral and documentary evidence and in the absence of medical record, before it, awarded the compensation Rs.2,8O,822/- under a-11 heads, which is highly excessive in al1 aspects; that the Tribuna-l in the absence of evidence hxed the income of the ' lzoo+; : scc zsr LNA.] MACMA Na 16sB oJ 2024 6 petitioner per month Rs-6,O00/- which is highly excessive and exorbitant.

14. Perusal of the record and award passed by the Tribunal would show that insurance company has taken categorical stand in the counter that the driver of the crime vehicle was not having driving license at the date of accident To substantiate the contentions, insurance company got examined its Administrative ofltcerasRW.landRTAofficerasRW.2.RTAoflrcercategorically S|atedthatdriverofthecrimevehiclewasnothavingdriving license as on the date of accident' Despite clear evidence of RW'2 and contention raised by the insurartce company that the driver of the crime vehicle was not having driving license, the Tribunal did not adjudicate the said issue arrd allowed the application fastening the liability on the appetlan L-insu rar-rce company and respondent No.2

15. With regard to exoneration of insurance company from its liability to pay the compensation amount, it is relevant to mention that the Motor Vehicles Act is benehcial legislation aimed at providing relief to the victims and their families ln National Insurance Co. Ltd Vs. Swaran Singh and othersl' the Hon'ble Apex Courl held as under: 7 LNA) MACMA No.165a al2024 '107. .W'e mag, hou..euer, hasten to add that the Tibunat and the court must, houteuer, exercise tircir juisdiction to lsue .sych a dire^ction upon consideration of"the focts and cr.rcumstances of each case and in the eueni such a direction has been issued, despite arriuing "t o trni'ing oy fact to tl,-e elfect that the insurer has been"abLe t; estabfisl_L that the insured ho.s committed o br"oci *rilo .J "1 ins.urance as enuisaged uncler sub_claus. firl .i "t""r,. Al .f sub-section (2) of Section 149 of the ecg ine inrurur." companA shall be entitled to reaLise the auard_ecl amount ou.tner or diuer of the uehicLe, as tne ise mng be, [:.::!: tn exe(wlion of the same atuard houing regard to lhe prouisions of Sections 165 and 168 of the Act.-io*.r.r, ,n ll"- "1.n,. hauing regard. to the limit;d uop" oJ-in,1rirg * the proceedings belore the Tibunat it hacl not been'able to do so,-the insurance compang mag initiate o ,"poroii'i"tion therefor ogainst the o*re, i, tie diuer o1 tli. ,.i_rit. o, 2ij!::: the..case.Taa b:. rhose exceptiinot .or.r- ,n y anse u)hen the euidence becomes auailible to or comes to the notice of th,e insurer at a subsequent ,tog" or-,io,) on" reason cr the other, the insurer *r" nZt qiien on op.portunitA to defend at aLl. also be resorted to when a fraud. o, .ott ^ag "ioi'n"t*".n tn" uictim anLl t-he ou_.tner of the uehicle is detected. o, "o^", n tne knoLuledge of the insurer at o later stoge. 1o8..Althouglt" as noticed hereinbefore, there are certaln special leaue petitions tuherein the persons hauf,ti the uehicles at the time tahen the accidenis tootl- ptor."iia not hold any licence ot all, in the facts ""a .ir.u*[t'oi..l,'it tn case, u)e do not intend to set aside the said awards. Such aut_ards ntag also be satAfied by the petitione,rs- hJrein s:tb1ec! to their ight to recoie.r the Zo^e 1?o^ tn" o)rrlrc o1 the uehicles in the manner taid. dottn th;r"in. B;t tnir""ora", maA not be, cottsi.dered as a precedent.,, (1 course o1 aitrr,n -Such L6. Thus, as per the decision of Honble Apex Court in Sularan sdzgrh's cd.se(supra.), it is clear that mere absence of possession of valid driving licren5s 6y the driver of the crime vehicle will not LNA'] MACMA No 1658 oJ202a 8 absolvetheinsurancecompanylromitsliabilitytopay compensation. In the light of the facts' circumstances of the case and the 17 . legal position, lhis Court is of the considered opinion that it is ltt casewheretheprincipleofpayandrecoverycanbeapplied. Accordingly, the lnsurance company has to first satisfy the Award and later, to recover the same from the owner of the offending vehicle i.e., respondent no 2 herein' 18. In the result, Appeal is partly-allowed' directing the appellant-insurance company to pay the amount awarded by the Tribunal and thereafter' recover the same from the owner of the vehicle. There shall be no order as to costs' Pending miscellaneous applications if any shali stand closed To, //TRUE COPY// SD/. T. JAYA SREE DEPUW REGISTRAR SECTI OFFICER

1. The Chairman MACT- ll Additional District Judge at Nizamabad 2. One CC to SRl. V SAMBASIVA RAO' Advocate [OPUC] 3. Two CD CoPies GK HIGH COURT DATED:20 tO2t2O2S JUDGEMENT MACMA.No.1658 of 2024 ...1 t''.i.: . ".\\\- -.'r ,':t.,.. /.: | ,'--,' - ! j-j'- J :: -- i: ,-' >. i;i r, 2 sEP 2[?5 ,,/ i: . -i,'; -:/! . .'--. ,,,'... .: li i-r i; l:-, j: .:_."':-" PARTLY ALLOWNG OF THE MACMA WTHOUT COSTS 8lal tno.alEEiJilt oF TELANGANA rN rHE H|GH "oult THURSDAY, THE TWENTIETH DAY OF FEBRUARY .' .-''-TWO HOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY MOTOR ACCIDENT CIVIL MIS CELLAN EOUS AP PEAL N O: 16 580F 2A24 Between: united lndia lnsurance company Limited, Rep by lts Divisional Manager' otrii;, B;;id; r"r'v'IiHt't" t' God own Road' N iza ma bad' tsi"i'r"il "'ri ...AppellanURespondent No' 2 in O'p'' AND 1 I Mandal' Kamareddy District Gotte Baswarai, S/o. Madhava Rao' 41 Years' Agriculturist' Pedda Gulla Viflug",lrkt Rathod Shankar Jayaram, S/o' Jayaram' Major' H'NO 5-11'1 ' Pedda Gulla Village. Jukkal Mandal, x'#''"|.Lii'v"oi"tliici'-1'owner-cum-Driver of Auto No rs 16 UA 3315). "t ...RespondenU Respondent No' 1 in O'P" Appeal filed Under Section 173 of Motor Vehicles Act'1988 against the Award and decree in M.V.o.P uo' ii+'"t zoi8 dated 12t.o8t2o24 on the file of the Court rtfnCf- fi nooitionat District Judge at Nizamabad "i'rf'" This appeal coming on for hearing and upon perusing the grounds of appeal' tf* iiiOr"""f and ihe malerial papers in the Case and ;; V sAIuBASIvA RAo' Advocate for the ""i the Judgment and Decree "i upon hearing tne argum;;t; nip"ffrnt, arid of noneappeared for the respondent No'1 and 2' This Court doth Order and Decree as follows: That the Motor Accident Civil lrliscellaneous Appeal be and hereby is Partly allowed, directing tne applttani lnsurance Company to pay the amount tft"t"'fttr recover the same from the owner ot awarded by the Tribunar 'ni the vehicle. That save as aforesaid, the Judgment and decree of the Tribunal shall stands confirmed in all other respects; and That there shall be no order as to costs in this appeal' 1 2 J To, //TRUE COPY// SD/- T JAYA SREE DEPUTY REGISTRAR 6f,' SECTION OFFICER

1. The Chairman tvlACT_ lt Additional District Judge at Nizamabad 2. Two CD Copies GK HIGH COURT DATED:2010212025 DECREE MACMA.No.1658 of 2024 PARTLY ALLOWTNG OF THE MACMA WITHOUT COSTS \0