Andhra Pradesh High Court – Amravati
Kurasala Pulla Rao vs Kovvuri Sai Rama Reddy 2 Others on 23 January, 2025
APHC010203142013
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY ,THE TWENTY THIRD DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
911/2013
Between:
Kurasala Pulla Rao ...APPELLANT
AND
Kovvuri Sai Rama Reddy 2 Others and ...RESPONDENT(S)
Others
Counsel for the Appellant:
1. TURAGA SAI SURYA
Counsel for the Respondent(S):
1. P B NARASIMHA MURTY
2. .
The Court made the following:
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THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
MACMA No. 911 of 2013
JUDGMENT:
1. By this appeal under section 173 of the Motor Vehicles Act,
1988 an injured claimant impugns the award dated 09.08.2012 of
the learned Motor Accidents Claims Tribunal – Cum – IV
Additional District Judge, (Fast Track Court), Tanuku in
MVOP.No.691 of 2009 to the extent of absolving the insurance
company from liability.
2. The offending vehicle is Bajaj Boxer Motorcycle bearing
registration number AP 05 R 3356. Respondent No.2 herein is
the owner of the said motorcycle. He got it insured with Bajaj
Allianz General Insurance Company Limited/ R3. On the fateful
day, this motorcycle was driven by R1.
3. The appellant/injured claimant was a small time seller of
plantain clusters earning about Rs.5,000/- per month. On
08.05.2009, he was going on his bicycle and at about 10.30 pm,
R1 drove the offending motor cycle rashly or negligently on NH 5
road and dashed the bicycle and as a result of it, the appellant fell
down and the motor cycle ran over his left leg and crushed it and
as a result, the appellant’s lower part of the left leg was
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amputated and he also suffered some more injuries in this
accident. In terms of Section 166 of the Motor Vehicles Act, he
made a claim for compensation of Rs.3,50,000/-. The driver of the
motor cycle and the owner of the motor cycle did not choose to
contest the claim. The Insurance company/ R3 raised its contest
denying all the facts and contended that at the material point of
time, the driver of the motor cycle did not possess valid and
effective driving licence and the owner of it negligently entrusted
the same and therefore the insurance company could not be
made liable.
4. Considering the rival pleadings, the learned claims tribunal
framed the following issues for trial.
1. Whether the accident dated 08.05.2009 occurred due to the
rash or negligent driving of the Bajaj Boxer Motor Cycle
bearing No.AP 05 R 3356 by the respondent No.1?
2. Whether the 1st respondent was having valid and effective
driving licence to drive Motor Cycle at the time of accident?
3. Whether the petitioner is entitled for compensation and if
so, for what amount and from which of the respondents?
4. To what relief?
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5. To prove their respective contentions, on behalf of the
injured claimant, PW.1 to 3 testified and Exs.A1 to A8 were
marked. On behalf of the insurance company, RW.1 to 5 were
examined and Exs.B1 to B6 and Exs.X1 and X2 were marked.
6. The subject matter accident was registered as Cr.No.59 of
2009 for the offence under section 338 IPC as per Ex.A1 which is
the attested copy of FIR. It was duly investigated into by the
police and as against the driver of the offending motor cycle a
charge sheet was laid and Ex.A4 is its attested copy. The driver
of the vehicle was charge sheeted for the offences under section
338 IPC as well as section 3 read with section 77 of the Motor
Vehicles Act. Considering the evidence of the injured and the
investigative reports of the police, the claims tribunal concluded
that the accident was due to rash or negligent driving of the
offending motor vehicle by R1.
7. Besides the evidence of injured/ PW.1, there was on record
evidence of two doctors/ PW.2 and 3 and Ex.A2 wound certificate
and Ex.A6 bunch of medical prescriptions and Ex.A7 bunch of
medical bills and Ex.A8 x-ray films and Ex.A5 disability certificate
issued by District Medical Board, West Godavari District, Eluru.
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All that evidence was considered in detail by the learned claims
tribunal. It found that because of the amputation of leg, the
claimant suffered 60% working disability. The income of the
claimant was notionally assessed at Rs.3,000/- per month and
thus, Rs.36,000/- per annum and his age was found to be 42
years and the relevant multiplier 14 was applied and accordingly,
Rs.3,02,400/- was arrived at towards his loss of earning capacity.
It granted Rs.2,000/- towards his transportation charges and
Rs.3,000/- towards extra nourishment and Rs.2,000/- towards
damages to clothes and articles and Rs.60,000/- towards his
actual medical expenses. It also granted Rs.18,000/- towards
pain and suffering and Rs.10,000/- towards loss of amenities and
Rs.25,000/- towards future medical expenses. Thus, a total of
Rs.4,22,400/- was assessed as just compensation and the same
was awarded with 9% interest from the date of petition. It
fastened liability on the owner and driver of the offending motor
cycle.
8. There was a keen contest about violation of insurance
policy conditions specifically with reference to availability or
otherwise of any driving licence for the driver of the offending
motor cycle. The insurance company examined one of its officers
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as RW.1 and got examined the owner of the offending motor
cycle as RW.5. During examination of RW.5, he was asked about
the driving licence of R1 who drove the motorcycle at the relevant
point of time. He responded saying that he verified the driving
licence of the driver and then entrusted the motor bike. However,
he was unable to produce the driving licence or a copy of it. RW.1
produced Ex.B4 which was a letter dated 10.11.2009 addressed
by the insurance company to the owner of the motor cycle
demanding him to produce a copy of the driving licence of R1. It
was received by the owner as evidenced by Ex.B6 postal
acknowledgment. The evidence of RW.1 remained undisputed
that the owner failed to furnish a reply and failed to submit a copy
of the driving licence of the driver of the offending motor cycle. On
facts it was found undisputed that the driver was prosecuted for
driving the vehicle without a driving licence. The investigation
officer who was a Sub-Inspector was summoned on behalf of the
insurance company and he testified as RW.2 and through him the
vehicle check report was marked as per Ex.B3. The insurance
company also examined an officer of Road Transport Authority
and he testified as RW.3 and produced Ex.X2 and stated that it
was on 14.10.2009 the driving licence was issued in favour of Sri
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K.Sai Ram Reddy/ R1/ the driver of the offending motor cycle.
Their evidence was that prior to that no driving licence was issued
to R1. The insurance company through Ex.B3 proved that
compounding fee of Rs.1100/- was also collected for driving the
vehicle without a valid driving licence. Thus, on facts the learned
claims tribunal arrived at a conclusion that R1 did not possess
any valid driving licence on the date of accident/ 08.05.2009. It
further found that the driver obtained a driving licence months
after the crime incident and that does not alter the situation.
9. In the context of above referred facts, the question that falls
for consideration before the claims tribunal was as to the liability
of the insurance company to pay compensation. Both sides cited
legal authorities before the claims tribunal and after considering
the ratios in those decisions, the learned claims tribunal took the
view that in those cases where the driver had no valid and
effective driving licence as on the date of accident, the liability
could not be fastened to insurance company. It was in that view
of the matter it passed the award in the following terms
“In the result this petition is allowed awarding
compensation of Rs.4,22,400/- along with interest at 9%
p.a. from the date of petition till the date of deposit.
Respondents 1 and 2 are jointly and severally liable to pay
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the compensation amount. 2nd respondent is directed to
deposit the compensation amount within 2 months and on
such deposit petitioner is permitted to withdraw
Rs.2,00.000/- and the balance shall be kept in term deposit
for a period of 2 years. This petition against 3rd respondent
is dismissed with costs. The petitioner shall pay the
difference of court fee for an amount of Rs.72.400/-.
Advocate fee is fixed at Rs.5,000/-”
10. In the present appeal, the only contention raised before this
court is about not fastening liability on the insurance company.
11. Heard arguments of Sri T.Sai Surya, the learned counsel
for appellant and Sri P.Bhaskar Narasimha Murthy, the learned
counsel for respondent No.3.
12. The point that falls for consideration is:
“Whether the impugned award is erroneous in
absolving insurance company from paying compensation?”
POINT:
An automobile is inherently dangerous. Therefore, every
road user may encounter a risk from such automobiles.
Therefore, as a measure of social security, law has mandated an
insurance cover for third party risks. Essentially a policy of
insurance is a contract between owner of the vehicle and the
Insurance company. Every insurance policy is issued subject to
9certain conditions. Where substantial violations of policy
conditions occurred usually insurance company claims waiver of
liability. The owner of the vehicle is always obliged to see that the
automobile was used by a person possessing valid and effective
driving licence. Therefore, before entrusting the vehicle to anyone
to drive, he was required to make due enquiries about the
existence or otherwise of driving licence by the driver of the
automobile. If the owner failed to exercise that care and caution
and entrust the vehicle to one who did not possess any driving
licence, then the conduct of the owner is stated to be negligence.
When there was negligence on part of the owner, the insurance
company refuses to indemnify the loss caused due to the
automobile. A road user being a third party to the automobile as
well as insurance policy suffers an injury for no fault of him. Then
the question is whether the insurance policy should operate and
the insurance company be directed to indemnify and pay
compensation to the third party. In the case at hand, existence of
valid insurance policy for offending vehicle at the relevant date of
accident is undisputed. It was also found as a fact that the driver
of the offending vehicle/R1 did not possess any driving licence. It
was also found as a fact that there was amputation of left leg
10below the knee for the claimant making him permanently
disabled. In those cases where a subject matter accident caused
permanent disability to a third party, the question to be
considered is whether the insurance company could be directed
to pay first and recover later from the owner of the vehicle. It is in
this regard, learned counsel for appellant cited Parminder Singh
V. New India Assurance Company Limited1. In a collision
between two trucks Parminder Singh suffered serious injuries and
became permanently invalid. Drivers of both the offending trucks
were found driving without any driving licence at the material
point of time. It was in that context, their Lordships after referring
to precedent stated that it is just and fair to direct the insurance
company to pay compensation and thereafter, recover the
amount from the owners and drivers of the trucks. Nothing
contrary is cited before this court. In view of the ruling of their
Lordships, this court is of the view that in a case of the present
nature similar benefit should be extended to the
appellant/claimant. No other contentions are urged before this
court. Hence, the point is answered accordingly.
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AIR 2019 SC 3128
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13. In the result, this appeal is allowed. Respondent No.3/ Bajaj
Alianz General Insurance Company Limited as well as
respondent Nos.1 and 2 are jointly and severally liable. The
amount of compensation and the rate of interest and other
directions prescribed in the impugned award are upheld.
Insurance company/ respondent No.3 is directed to deposit the
awarded amounts along with interest within a period of two
months from the date of this order. It is made clear that R3/
Insurance company is entitled to execute this award and recover
the amount from the owner/R2 and the driver/R1. In the light of
the above facts and circumstances, each party shall bear their
own costs in this appeal.
As a sequel, miscellaneous applications, pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 23.01.2025
Dvs
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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
MACMA No. 911 of 2013
Date: 23.01.2025
Dvs