IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 35 OF 2019 Between: 1. Besta Telugu China Hussainaiah, S/o.Naganna, aged about 64 years, R/o.Yedurupadu Village, Kothapalli Mandal, Kurnool District. 2. Besta Telugu Venkatamma, W/o.China Hussainaiah, aged about 59 years, R/o.Yedurupadu Village, Kothapally Mandal, Kurnool District. 3. T.Chandra Mohan, S/o.Besta Chinna Hussainaiah, aged about 27 years, R/o.Yedurupadu Village, Kothapalli Mandal, Kurnool District. ...Appellants/Petitioners AND 1. Boya Venkateswarlu, S/o.Boya Pedda Kullai, aged about 32 R/o.B.C.Colony, Yedurupadu Village, Kothapalli Mandal, District. years, Kurnool 2. Boya Ramakrishna @ Ramakrishnudu, S/o.Boya Pedda Kullai, aged about 30 years, R/o.B.C.Colony, Edurupadu Village, Kothapalli Mandal, Kurnool District. 3. The Manager, H.D.F.C & E.R.G.O General Insurance Company, 6 Floor, Loda, Business Park Kurla Road, Andheri (E), Mumbai-400 159. ...Respondents/Respondents Appeal under Section 173 (1) of the Motor Vehicles Act, against the Order, dated 25-04-2018 passed in MVOP No.293 of 2014 on the file of the fh Chairman, Motor Vehicle Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool, Kurnool District. This appeal coming on for hearing and upon perusing the grounds of appeal, the Order and Decree of the Trial Court and material petition and upon hearing arguments of Sri G.Sravan Kumar, Advocate Appellants, and of Sri Srinivasa Rao Narra, Advocate for Respondent Nos.1 and 2 and of Sri Gudi Srinivasu, Advocate for Respondent No.3. 1. That the Appeal be and the same hereby is allowed in part; 2. That the liability be and hereby is fixed on Respondent No.3/lnsurance Company also by directing the Respondent No.3 compensation, and then recover the amount from the No.2/Owner of the offending vehicle; and 3. That the quantum of compensation awarded by the tribunal hereby confirmed. 4. That there be no order as to costs in this MACMA. papers in the for to first pay the respondent be and is Sd/- G. HELA NAIDU ASSISTANT REGISTRAR //TRUE COPY// ^SECTION OFFICER To 1. The Chairman, Motor Vehicle Accidents Additional District Judge, Kurnool, Kurnool District. 2. Two CD Copies Claims Tribunal-cum-IV RAM HIGH COURT DATED:02/05/2025 > DECREE ov S 3 0 JUN 2025 mil MACMA.No.35 of 2019 ALLOWING THE APPEAL IN PART WITHOUT COSTS IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 35 OF 2019 Appeal filed under Section 173 (1) of the Motor Vehicles Act, against the Order, dated 25-04-2018 passed in MVOP No.293 of 2014 on the file of the Chairman, Motor Vehicle Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool, Kurnool District. Between: 1. Besta Telugu China Hussainaiah, S/o.Naganna, aged about 64 R/o.Yedurupadu Village, Kothapalli Mandal, Kurnool District. 2. Besta Telugu Venkatamma, W/o.China Hussainaiah, aged about 59 years, R/o.Yedurupadu Village, Kothapally Mandal, Kurnool District. 3. T.Chandra Mohan, S/o.Besta Chinna Hussainaiah, aged about years, R/o.Yedurupadu Village, Kothapalli Mandal, Kurnool District. years. 27 ...Appellants/Petitioners AND 1. Boya Venkateswarlu, S/o.Boya Pedda Kullai, aged about 32 R/o.B.C.Colony, Yedurupadu Village, Kothapalli Mandal, District. years, Kurnool 2. Boya Ramakrishna @ Ramakrishnudu, S/o.Boya Pedda Kullai, about 30 years, R/o.B.C.Colony, Edurupadu Village, Kothapalli Mandal Kurnool District. aged 3. The Manager, H.D.F.C & E.R.G.O General Insurance Company, 6 Floor, Loda, Business Park Kurla Road, Andheri (E), Mumbai-400 159. th r ...Respondents/Respondents Counsel for the Appellants :Sri G.Sravan Kumar Counsel for the Respondent Nos.1 & 2: Sri Srinivasa Rao Narra Counsel for the Respondent No.3: Sri Gudi Srinivasu The Court made the following: APHC010021502019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 35/2019 Between: Besta Telugu China Hussainaiah and 2 others ...APPELLANT(S) AND B Venkateswarlu and others ...RESPONDENT(S) Counsel for the Appellant{S): 1.G SRAVAN KUMAR Counsel for the Respondent(S): 1 .SRINIVASA RAO NARRA 2.GUDI SRINIVASU The Court made the following: 2 VS,J MACMA No.35 of 2019 JUDGMENT: The appellants/petitioners filed the present appeal seeking enhancement of the compensation and also questioning the dismissal of claim petition as against respondent No.3/insurance company vide order and decree 25.04.2018 in M.V.O.P.No.293 of 2014 on the file of the Court of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool. By the said order, the Tribunal granted compensation of Rs. 12,24,600/- (Rupees Twelve lakhs Twenty four thousand six appellants/petitioners herein, as against the claim of Rs.14,00,000/- account of the death of the deceased Siva Prasad in a motor accident that occurred on 11.11.2013 and fixed liability on respondent Nos.1 and 2 only, the driver and owner of the offending vehicle respectively, and dismissed the claim against respondent No.3/insurance company. hundred only) to the on 02. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 03. The case of the petitioners, in brief, is as follows; a) The petitioners No.1 and 2 are parents, and petitioner No.3 is the younger brother of the deceased Siva Prasad. Respondent No.1 is the driver of the offending vehicle. Respondent No.2 is the owner of the offending vehicle, i.e., tractor bearing registration No.AP 21 TX 4677, and respondent No.3 is the insurer of the offending vehicle. 3 MACMA No.35 of 2019 b) The petitioners are residents of Yedurupadu Village of Kothapalli Mandal, Kurnool District. They own certain lands in their village. On 11.11.2013, they engaged a ROTA machine for agricultural operations in their land known as ‘Jammimanu chenu’ paying a rent of Rs.1000/- per acre. While so, after using ROTA machine for some time, the deceased asked respondent No.1, the driver, to stop the tractor so that he could dismount from the driver’s seat due to inconvenience. However, instead of stopping the vehicle, he suddenly raised the accelerator, due to which the tractor picked up speed pulling down the deceased under the ROTA machine. The ROTA machine cut the leg of the deceased into five pieces causing untold pain and sufferance. There was profuse bleeding from the injuries. Immediately, he was shifted to Community Health Center, Atmakur wherein he was given first aid and was advised to be admitted to Government General Hospital, Kurnool. However, on the way between Bannur and Jupadu Bungalow village, he succumbed to injuries and was declared as brought dead to the hospital. On 12.11.2013, at about 10.30 a.m., Kothapalli Police registered a case in Crime No.57/2013. c) The petitioners contended before the Tribunal that that the deceased was working as driver in KCM Construction Company, Allagadda and earning Rs.10,000/- per month. He was holding a valid driving license. On account of death of the deceased, their family lost his earnings besides his love and affection. He was supporting the education of the third petitioner by spending Rs.1,50,000/- per annum for his Bachelor’s decree. Therefore, they sought w 4 VS,J t MACMA No.35 of 2019 compensation of Rs. 14,00,000/- from respondents No.1 to 3, the driver and insurer of the crime vehicle respectively. owner Before the Tribunal, the respondent-owner of the vehicle remained 04. ex parte. 05. Respondent No.2 filed counter-affidavit contending that the allegations made by the petitioners are false. He contended that the vehicle is insured with respondent No.3, and the insurance policy issued by respondent No.3 was in force as on the date of accident. Therefore, he contended that he is not liable to pay compensation and prayed to dismiss the claim petition. 06. Respondent No.3 filed counter admitting issuance of the policy in respect of offending vehicle by it and also the fact that the policy was in force as on the date of accident. It is further contended that respondent No.2, who is owner of the offending vehicle, entrusted the vehicle to respondent No.1, who was not holding any license to drive the same and thereby respondent No.2 committed breach of terms and conditions of the policy. Therefore, it is not liable to indemnify the loss, if any, incurred by respondent No.2. 07. Basing on the pleadings, the Tribunal framed the following issues for trial; “1. Whether the accident occurred due to rash and negligent driving of the driver of tractor bearing registration No.AP 21 TX 4677? 2. Whether the claimants are entitled to the compensation of Rs.14,00,000/- or to what just amount and from whom the same shall be recovered? i 5 vs,j MACMA No.35 of 2019 3. To what relief? On behalf of the petitioners, P.Ws.1 to 4 were examined, and Exs.AI to A16 were marked. On behalf of respondent No.2, no witnesses were examined, and Exs.BI and B2 were marked. Exs.XI to X3 were also marked. 08. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed the claim petition against respondent Nos.1 and 2, awarding compensation of Rs.12,24,600/- with subsequent interest @7.5% per annum from the date of filing of the petition till the date of deposit and directed respondents No.1 and 2 to deposit the said amount of compensation within 30 days from the date of the award. Out of the awarded amount, petitioners No.1 and 2 were entitled to Rs.4,00,000/- each, and petitioner No.3 was entitled to Rs.4,24,600/-. The petitioners No.1 and 2 were held entitled to withdraw their entire share of the amount along with accrued interest, petitioner No.3 was entitled to withdraw Rs.1,00,000/- with accrued and interest on his share of the amount. The remaining amount was directed to be kept in fixed deposit in any Nationalized Bank for a period of two years. The petition against respondent No.3 dismissed, as respondent No.1 was not having license to drive the tractor or any other vehicle of similar type and as such respondent No.3/insurance company is not liable to indemnify the loss incurred by respondent No.2. 09. was 10. Aggrieved by the said award, the petitioners filed this appeal contending that the Tribunal erred in awarding Rs.12,24,600/-, instead of Rs.14,00,000/- 6 VS,J MACMA No.35 of 2019 as claimed towards compensation against respondents No.1 and 2, and in dismissing the claim against the insurance company/respondent No.3. It is further contended that the Tribunal erred in dismissing the petition against respondent No.3, though the insurance policy issued by respondent No.3 was in force as on the date of the accident. The Tribunal erred in holding respondent No.2 alone liable to pay the compensation though the insurer is liable to pay the compensation since the policy was in force at the time of the accident. Further, the Tribunal ought to have considered that respondent No.2 did not violate the terms and conditions of the policy as evidenced by Ex.B1. The Tribunal also erred in relying upon the oral evidence of RW3 and Exs.X2 and X3 to conclude that respondent No.2 violated the terms and conditions of Ex.B1 policy. Therefore, the impugned award was warrants interference in terms of amount of compensation and the liability. 11. Learned counsel for respondent Nos.1 and 2 driver and owner of the offending vehicle respectively would support the contentions of the petitioners and submit that respondent No.3/insurance company is liable to pay the compensation awarded. 12. On the other hand, learned counsel for the respondent No.3 herein has supported the impugned award and prayed to dismiss the appeal. 13. Now the point for consideration is: Whether the order of the Tribunal needs any interference? 7 MACMA No.35 of 2019 14. Heard learned counsel for the petitioners, Sri Narra Srinivasa Rao, learned counsel for respondent Nos.1 and 2 and Sri Gudi Srinivasu, learned counsel for respondent No.3. POINT; 15. The appellants/claimants have preferred the present appeal on the ground that though the vehicle was insured with respondent No.3, the Tribunal has held that respondent No.3 is not liable to indemnify the loss incurred by respondent No.2, the owner of the offending vehicle. In view of the fact that respondent No.1, who was driving the said vehicle, was not holding a valid driving license as on the date of the said incident. 16. Learned counsel for the appellants relied upon the Judgment dated 25.03.2025 in MACMA No.144 of 2015, wherein this Court, under similar circumstances, held that the principle of pay and recovery is to be applied. In the said case also the offending vehicle was validly insured under an insurance policy and the said insurance policy was in force on the date of accident. However, as the driver of the offending vehicle was not having valid and effective driving license at the relevant point of time it amounted to breach of insurance policy conditions and therefore absolved the insurance company of any liability and allowed the claim petition only against the owner of the offending vehicle. This Court having considered the issue held as under: “10. On the issue of liability to pay the compensation by the insurer, if there n/as fundamental breach of insurance policy, the insurance 8 VS,J MACMA No.35 of 2019 company could be absolved of the liability. However, in those cases where the third party claimant suffered serious injuries and acquired permanent disability such as the one available in the case at hand, the consistent view taken by the Constitutional Courts is to apply the principle of pay and recover (Shamanna v. The Divisional Manager, The Oriental Insurance Co. Ltd. (2018) 9 see 650 and Parminder Singh u. New India Assurance Company Limited (2019) 7 SCC 217). In such view of the principles of law it is difficult to approve the impugned award to the extent that it absolved the insurance company totally. In the given facts and circumstances of this case this Court records that respondent No.2-Insurance Company need not shoulder the liability and indemnify the owner of the offending vehicle. However, this is a fit case to apply the principle of pay and recover. Therefore, the compensation awarded by the Claims Tribunal has to be first paid by the insurance company and thereafter the insurance company is entitled to file execution petition against the owner of the offending vehicle/respondent No. 1 for recovering the same. ” In the instant case also, it is not in dispute that the offending vehicle was insured with the insurance company under Ex.B1 policy and the said policy was in force as on the date of incident. Admittedly, the deceased 17. sustained multiple fractures and injuries and thereafter succumbed to death because of the said injuries. It is to be noted that in National Insurance Co. Ltd. v. Swaran Singh & Ors.,^ the Hon’ble Supreme Court has held that if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the claimants and then recover the amount 18. from the insured (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies (2004) 3 SCC 297 9 MAGMA No.35of2019 are statutorily required to protect third parties, and even in cases of breach by the insured, the insurer's liability towards third-party victims does not vanish immediately. In view of the above, and following the settled principles of law as held by the Hon’ble Supreme Court in the decisions referred supra, this Court is of the opinion that the compensation awarded by the Tribunal in the instant case has to be first paid by the insurance company, and thereafter the insurance 19. company can recover the same from the owner of the offending vehicle. So far as the quantum of compensation is concerned, though the claimants contended that the deceased was earning Rs.10,000/- per month by working as a driver in KCM Construction Company, there was no sufficient proof produced to establish the income of the deceased. Hence, taking into consideration Ex.A9 bank passbook of the deceased which shows average income between Rs.7,425/- and Rs.8,000/- per month, the Tribunal opined that if 50% of the income is deducted towards personal expenditure as the deceased was a bachelor, his remaining monthly income would be Rs.4,000/-, which is just and proper. Following the decision of National Insurance Company v. Pranay Sethi^, the Tribunal has rightly added 40% of his income, whereby his monthly income was arrived at Rs.5,600/-. Applying the relevant multiplier of ‘18’ applicable to the age of the deceased i.e., 20 years as per the decision of Sarla Verma v. Delhi Transport Corporation^ the loss 20. 2017 ACJ 2700 ^ 2009 ACJ 1298 10 vs,j . MACMA No. 35 of 2019 of dependency was arrived at Rs.12,09,600/- (Rs.5,600 X 12 X 18). Further, the petitioners were granted Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. In all, the petitioners were granted compensation of Rs.12,24,600/-, which is just and reasonable and requires no interference in this appeal. In view of the above discussion, while confirming the quantum of compensation awarded by the Tribunal, this Court deems it appropriate to partly allowed this appeal by fixing the liability on respondent No.3/Insurance Company also and directing respondent No.3 to first pay the compensation and then recover the amount from respondent No.2/owner of the offending 21. vehicle. With the above direction, this appeal is allowed in part. No costs. 22. Pending miscellaneous applications, if any, shall stand closed. Sd/- G. HELA NAIDU ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The Chairman, Motor Vehicle Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool, Kurnool District. (With records) One CC to Sri G.Sravan Kumar, Advocate [OPUC] One CC to Sri Srinivasa Rao Narra, Advocate [OPUC] One CC to Sri Gudi Srinivasu, Advocate [OPUC] The Section Officer, V.R.Section, High Court of A.P at Amaravati. Two CD Copies 2. 3. 4. 5. 6. BSV RAM HIGH COURT DATED:02/05/2025 JUDGMENT AND DECREE MACMA.No.35 of 2019 ALLOWING THE APPEAL IN PART WITHOUT COSTS