1 VS,J MACMA_174_2019 APHC010086362019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] MONDAY ,THE FIFTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 174/2019 Between: Pasupuleti Srinivasa Rao ...APPELLANT AND Yenala Ramu and Others ...RESPONDENT(S) Counsel for the Appellant: 1. SIVA PRASAD KATAKAMSETTY Counsel for the Respondent(S): 1. GUDI SRINIVASU 2. The Court made the following: 2 VS,J MACMA_174_2019 JUDGMENT:- The appellant/claimant filed the present appeal seeking enhancement in M.V.O.P.No.1100 of 2015 on the file of Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Guntur, dated 10.08.2018 whereby and whereunder the Tribunal granted compensation of Rs.2,47,600/-, as against the claim of Rs.3,00,000/-, on account of the injuries incurred by Pasupuleti Srinivasa Rao/appellant/claimant in a motor accident that occurred on 06.05.2014. 2. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal. The 1st respondent herein is the owner and the 3rd respondent is the driver of the tractor-cum-trailer bearing No.AP07W3239 and AP07W3240. The 2nd respondent herein is the insurance company. 3. On 06.05.2015, at about 07.15 p.m., while the petitioner and one Prudhvi Kumar were travelling on a motorcycle bearing No.AP 07 BK 3839 from Dachepalli to Guntur, at Thammalacheruvu Chettu on Addanki – Narketpalli highway, Piduguralla mandal, the tractor-cum-trailer bearing No.AP 07 W 3239 and AP 07 W 3240, driven by the 3rd respondent in a rash and negligent manner in the opposite direction, hit the motorcycle on which the petitioner was travelling, resulting in compound and comminuted fracture of both bones of his left hand. He was shifted to Nursing Home of Dr. Anji Reddy, Piduguralla and a case was registered in Crime No.173/2015 under Section 338 IPC in Piduguralla Police station. 4. While the 1st and 3rd respondents remained ex-parte, the 2nd respondent has filed a written statement denying the averments of the claim petition, the manner of the accident, the validity of the driving 3 VS,J MACMA_174_2019 license of the 3rd respondent. The petitioner/claimant came in a rash and negligent manner and further he rode the vehicle in a zig-zag manner which lead to the accident. The tractor-cum-trailer of the 1st respondent was not having valid registration certificate, permit and fitness certificate to ply on the road at the time of accident. It is further stated that the compensation sought for by the petitioner is excessive. 5. Based on the above pleadings, the Tribunal framed the following issues for trial. 1) Whether the accident occurred due to the rash and negligent driving of the driver of the Tractor-Cum-Trailer bearing No.AP 07 W 3239 & AP 07 W 3240? 2) Whether the petitioner is entitled to compensation, if so to what amount and against whom? 3) To what relief? 6. During the course of trial, in support of his case, the petitioner himself was examined as P.W.1 and Exs.A.1 to A.10 were marked. The doctor who treated the petitioner was examined as P.W.2. On behalf of the 2nd respondent, R.W.1 – Manager, was examined and marked Exs.B1 to B5. Motor Vehicle Inspector, Macherla was examined as R.W.3. 7. The Tribunal, placing reliance on the material available before it and basing on the evidence adduced by the doctor who treated the petitioner (P.W.2), Manager of the 2nd respondent company and Motor Vehicle Inspector, Macherla (R.W.3), it has awarded a total amount of Rs.2,47,600/- to the petitioner, but, taking into account the fact that the 3rd respondent has not valid license and that the offending vehicle does not have necessary permissions, the Tribunal has made the respondent Nos.1 and 3 entirely liable to pay the awarded amount to the petitioner, 4 VS,J MACMA_174_2019 while dismissing the claim petition as against the 2nd respondent. Challenging which, the appellant/claimant has filed the present appeal. 8. Heard Mr. Pasupuleti Srinivasa Rao, learned counsel for the appellant/claimant and Sri. Gudi Srinivasu, learned counsel for the 2nd respondent. 9. During the course of arguments, learned counsel for the appellant contends that the Tribunal, erred in fixing the liability on the 1st and 3rd respondents alone, but not on the 2nd respondent for paying the compensation awarded. Relying on a judgment of the Hon‟ble Supreme Court in National Insurance Company Limited Vs. Swaran Singh and others1, learned counsel for the appellant contended that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach on the condition of driving license is so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insured under Section 149(2) of the Act. Further, learned counsel for the appellant relied upon a judgment of the Hon‟ble Supreme Court in Oriental Insurance Company Limited Vs. Nanjappan and others2. He contends that even if the 2nd respondent is made liable for paying the compensation to the petitioner, the same can be recovered from the insured. Hence requested to allow this appeal. 1 (2004) AIR(SC) 1531 2 (2004) 13 SCC 224 5 VS,J MACMA_174_2019 10. On the other hand, learned counsel appearing for the 2nd respondent relying upon the evidence of the Motor Vehicle Inspector (R.W.3), contended that the offending vehicle is having fitness certificate, but, it has got no permit to ply on the road. Though the 3rd respondent got a license, it is not a valid and effective license, considering the type of the offending vehicle. As non-possession of permit is violation of policy, the Tribunal has rightly observed that the 2nd respondent is not liable to pay compensation towards the petitioner and has accordingly made the 1st respondent liable to pay the compensation awarded to the petitioner. He submitted that the award passed by the Tribunal needs no interference by this Court. 11. It is not in dispute that the accident occurred on 06.05.2015, while the petitioner along with another was travelling on a motorbike bearing No.AP 07 BK 3839 from Dachepali to Guntur, at Thammalacheruvu Chettu. The offending vehicle is a tractor-cum-trailer bearing No.AP 07 W 3239 and AP 07 W 3240 owned by the 1st respondent and driven by the 3rd respondent. During the course of trial, the Tribunal has marked FIR in Crime No.173 of 2015 of Piduguralla Police station as Ex.A1 and the charge sheet as Ex.A2, wherein, it is held that the 3rd respondent drove the offending vehicle and caused the accident. As there is no contra evidence on behalf of the 2nd respondent, the Tribunal has given a finding that the accident occurred due to rash and negligent driving of the offending vehicle, by the 3rd respondent. 12. Before the Tribunal, the petitioner affirms that he used to work as salesman in Kanneganti Impex and used to earn Rs.15,000/- per month as salary, as on the date of accident. In the said accident, the petitioner‟s left elbow and wrist joint movements were badly restricted and 6 VS,J MACMA_174_2019 he is unable to do any sort of work with his right hand and is unable to ride a two wheeler. As no proof was filed in support of his earnings, considering his age and nature of work done by him, the Tribunal has assessed his monthly income as Rs.6,000/- i.e. Rs.72,000/- per annum. As the petitioner was aged about 27 years at the relevant point of time, the Tribunal has applied multiplier „17‟, as per the judgment of the Apex Court in Sarla Verma and others V. Delhi Transport Corporation and another3, thus, the total amount comes to Rs.12,24,000/-. The petitioner states that he underwent treatment at Nursing Home of Dr. S. Amarnath from 06.05.2015 to 18.06.2015 and during the said period, he underwent surgeries to his left hand and after getting discharged, he has also attended follow up treatment. In support of his case, the petitioner got marked all the medical bills pertaining to medicines and other surgical equipment, as Exs.A3 to A.10. The Tribunal, after examining Ex.A4 – medical bills totaling an amount of Rs.5,648, Ex.A5 – bill pertaining to X- rays for an amount of Rs.1,460, Ex.A6 – bills pertaining to purchase of implants for an amount of Rs.3,600/-, Ex.A8 – consolidated bills for the stay in hospital from 13.05.2015 to 18.06.2015 for an amount of Rs.32,250/-. In total, Rs.42,958/- was incurred by the petitioner and the Tribunal has rounded the amount to Rs.43,000/-. After applying the multiplier „17‟ as per the aforesaid judgment, the total amount computed was Rs.12,24,000/- and as the petitioner‟s disability was assessed as 15% as per Ex.A.3 – wound certificate and as well as the evidence of P.W.2 - doctor, the total amount arrived at is Rs.1,83,600/- [Rs.12,24,000/- X 15%]. Further, the Tribunal has awarded an amount of Rs.10,000/- towards pain and suffering and also Rs.5,000/- for diet and extra nourishment. Towards loss of income, Rs.6,000/- was awarded by 3 2009 ACJ 1298 (S.C.) 7 VS,J MACMA_174_2019 the Tribunal. In total, Rs.2,47,600/- [Rs.1,83,600/- + Rs.43,000/- + Rs.10,000/- + Rs.5,000/- + Rs.6,000/-] was awarded to the petitioner, which, in the opinion of this Court is just and reasonable and need not be interfered. 13. Further, the Tribunal held that in order to drive a tractor-cum- trailer, which is a commercial use light motor vehicle, one should possess LMV/transport driving license, but, the 3rd respondent possesses only T&T non-transport driving license which is in violation of the terms and conditions of Ex.B1 –policy. It also held that the offending vehicle does not have any permit and fitness certificate at the time of accident, without which, one cannot ply the same on the road. As such, the Tribunal came to a conclusion that it is the 1st respondent – owner of the offending vehicle, who is liable to pay the compensation awarded to the petitioner and has relieved the 2nd respondent from the said burden. 14. In National Insurance Company Limited Vs. Swaran Singh and others (1st supra), the Hon‟ble Supreme Court, held as follows: “106 (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured u/s 149(2) of the Act.” 15. It can be understood that even if the insurance company is able to prove that the person who was driving is not having a valid licence, or was not properly qualified to drive at the time of the accident, that alone is not enough for the insurer to deny responsibility. The insurance company 8 VS,J MACMA_174_2019 can only avoid paying, if this violation was serious enough to have actually caused or contributed to the accident. When looking at such situations, courts will focus on the main purpose of the insurance policy and decide whether the breach was truly fundamental. Even in this case, although the driver of the offending vehicle did not have a valid driving license at the time of the accident, the 2nd respondent (insurance company) cannot avoid paying the compensation awarded by the Tribunal to the petitioner. This is because the lack of a license alone is not enough to deny payment, unless it directly caused the accident. The main purpose of insurance is to protect third parties, so if the breach did not lead to the accident, the insurer still has to pay. In the instant case, though the Manager of the 2nd respondent was examined as R.W.1, he contended only with respect to the validity of the license of the 3rd respondent and the valid permit of the offending vehicle, but, he has failed to prove that the accident occurred because of the aforesaid violations. 16. In Oriental Insurance Company Limited Vs. Nanjappan and others (2nd supra), the Apex Court held as under: “8…..For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject- matter or determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the 9 VS,J MACMA_174_2019 executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner o the vehicle, the insured.” 17. In view of the above discussion, this Court feels it appropriate to modify the award passed by the Tribunal in M.V.O.P.No.1100 of 2015, dated 10.08.2018 only to the extent of directing the 2nd respondent to pay the compensation to the claimant/petitioner and recover it from the owner of the offending vehicle i.e. 1st respondent, keeping in view the law laid down by the Hon‟ble Supreme Court in Oriental Insurance Company Limited Vs. Nanjappan and others (2nd supra). 18. In the result, the Motor Accident Civil Miscellaneous Appeal is party allowed. No costs. Consequently, miscellaneous applications pending, if any, shall stand closed. ___________________ JUSTICE V. SUJATHA Date:05.05.2025. Gss