IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY ,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE 3^ X O I V PRESENT HONOURABLE JUSTICE DR V R K KRUPA SAGAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1221 OF 2013 Appeal filed under Section 173 of Motor Vehicles Act, aggrieved by the orders passed by way of Judgment and Decree in M.V.O.P.No.399 of 2009, dated 08.05.2012 on the file of the Chairman, Motor Accidents Claims Tribunal (VIII Addl. District Court) East Godavari Rajahmundry. Between: The New India Assurance Co Ltd, rep by its Divisional Manager O/o.Rajahmundry. ...Appellant / Respondent No.3 AND 1. Namadi Yesu, S/o.Vanumula, Aged 48 Yrs, Hindu R/o.5-54, Angara, Kapileswarapuram [M], East Godavari District. 2. Namadi Surya Kantham, W/o.Yesu, Aged 41 Yrs, Hindu R/o.5-54, Angara, Kapileswarapuram [M], East Godavari District. ...Respondents / Petitioners 3. Yerramsetti Chinna Hanumantha Rao, S/o.Madhusudhana Rao, Aged 29 Yrs, Occ: Driver of Hero Honda Splendor No.AP 16 S 2351 R/o.61- 28/4, RL Nagar, Alla Challarao Street, Vijayawada. #' 4. Yerramsetti Veera Hanumantha Rao, S/o.Madhusudhana Rao, Aged 31 Yrs, Occ: Driver of Hero Honda Splendor No.AP 16 S 2351 R/o.2-267, Nizampeta, Gudiwada. ...Respondents / Respondents i.A. NO: 2 OF 2012rMACMAMP. NO: 6356 OF 20121 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased stay the execution of decree and judgment passed in MVOP No.399/2009 dated 08.05.2012 on the file of the Chairman Accidents Claims Tribunal cum VIII Addl. District Court, East Godavari District at Rajahmundry. Motor Counsel for the Appellant :SRI. KESAVI KUMARI NEMALA Counsel for the Respondent Nos 1 & 2 : SRI. HARINATH REDDY SOMA The Court made the following: JUDGMENT 4< APHC010078752013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3365] WEDNESDAY ,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1221/2013 Between: The New India Assurance Co Ltd ...APPELLANT AND Namadi Yesu 3 Ors and Others Counsel for the Appellant: 1.KESAVI KUMARI NEMALA Counsel for the Respondent(S): 1.HARINATH REDDY SOMA 2.NARASIMHA RAO DAVULURI The Court made the following: ...RESPONDENT(S) Dr.VRKS,J MACMA.No.1221 of 2013 ^v THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR MAGMA No. 1221 of 2013 JUDGMENT: 1. This appeal under section 173 of the Motor Vehicles Act, 1988 is filed by the New India Assurance Company Limited impugning the order dated 08.05.2012 of the learned Chairman, Motor Accidents Claims Tribunal - Cum - VIII Additional District Judge, Rajahmundry in MVOP.No.399 of 2009. 2. The following facts are required to be noticed; Sri N.Venkata Rao aged 20 years was a Coolie earning Rs.3,000/- per month. On 14.10.2006 at about 8:00 p.m., he was crossing the road on foot in Ramanagar, opposite Krishna hotel, Vijayawada. At that time, a motorcycle bearing registration No. AP 16 S 2351 owned by Sri YV Hanumantha Rao was driven by his brother Sri Y. Chinna Hanumantha Rao and he drove it rashly or negligently and dashed Sri N. Venkata Rao. Consequently, the victim suffered serious head injuries and injuries all over the body and died on the next day out of those injuries. The Law and Order Police Station, Patamata, Vijayawada registered Cr.No.620 of 2006 as against the driver of the offending motorcycle. During investigation, an inquest over the dead body was held and thereafter the body was subjected to post mortem. The offending vehicle was inspected by Motor Vehicles Inspector who found mechanical defects in it. At the relevant time, the offending motor cycle was found insured by the New India Assurance Company Limited. After due investigation, a charge sheet was laid as no 3 Dr.VRKSJ MACMA.No.1221 of 2013 against the driver of the offending vehicle. The parents of the deceased filed MVOP.No.399 of 2009 before learned Chairman, Motor Accident Claims Tribunal, East Godavari, Rajahmundry. R1 therein was the driver of the offending vehicle. R2 therein was the owner of the offending vehicle. R3 therein was the insurance company. Before the claims tribunal, the claimants sought compensation of Rs.3,88,500/-. The driver and owner of the offending vehicle did not choose to appear and contest. Insurance company filed its counter and raised several questions. Learned claims tribunal settled the following issues for trial. 1. Whether the pleaded accident occurred and the petitioner sustained injuries due to his involvement in a motor vehicle motor cycle bearing No. AP 16 S 2351 while it was in use in a public place? (after being recast by the claims tribunal) 2. Whether the petitioners are entitled to any compensation, if so, to what amount and against whom? 3. To what relief? The father of the deceased testified as PW.1 and Exs.AI to A4 were marked. An officer of RTA testified as RW.1 and an officer of the insurance company testified as RW.2 and Exs.BI to B5 were marked. 3. It has to be mentioned that the claim was under section 163A of the Motor Vehicles Act. Learned claims tribunal considered the evidence on record and the submissions made on both sides and held that Sri N.Venkata Rao died because of the automobile accident and the offending vehicle was motor cycle 4. 4 Dr.VRKSJ MACMA.No.1221 of 2013 bearing registration No.AP 16 S 2351. It then considered the entire evidence and the contentions on both sides and recorded that Rs.36,000/- was the annual income of the deceased. After making necessary deductions and after applying the multiplier 14, it granted Rs.3,36,000/- towards loss of dependency, Rs.10,000/- towards loss of love and affection,. Rs.5,000/- towards mental agony and Rs.2,500/- towards funeral expenses. Thus, a total compensation of Rs.3,53,500/- was awarded. Before the claims tribunal, huge contention was raised by the insurance company about the driving licence of the driver of the offending motor cycle. After noticing the precedent, learned claims tribunal held that the insurance company was also liable to pay compensation. Eventually, it passed the award in the following terms. “In the result, the claim of the petitioners is partly allowed with proportionate costs awarding compensation of Rs.3,53,500/- (Rupees three lakhs fifty three thousand and five hundred only) against R.1 to R.3 with interest at 7.5% per annum from the date of the petition till the date of realization. R.1 to R.3 is directed to deposit the said awarded compensation into the Court within one month from the date of this Order. The awarded compensation shall be apportioned between the petitioners in following manner: 1 petitioner/father of the deceased is entitled to get a compensation of Rs. 1,03,500/- (Rupees one lakh three thousand and five hundred only) with interest thereon and he is permitted to withdraw an amount of P.s.50,000/- (Rupees fifty thousand only) and the remaining amount of 5 Dr.VRKSJ MACMA.No.1221 of 2013 Rs.53,500/- (Rupees fifty three thousand and five hundred only) with interest on Rs. 1,03,500/- shall be deposited in any Nationalized Bank for a period of one year, and on maturity, he is permitted to withdraw the entire amount with accrued interest thereon, soon after the deposit is made and the 2nd petitioner/mother of deceased is entitled to get a compensation of Rs. 2,50,000/- (Rupees two lakhs fifty thousand only) with interest thereon and she is permitted to withdraw an amount of Rs. 1,00,000/- (Rupees one lakh only) with entire costs and the remaining amount of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) with interest on Rs. 2,50,000/- shall be invested in any Nationalized Bank for a period of one year and on maturity, she is permitted to withdraw the entire amount with accrued interest thereon, soon after the deposit is made. ” 5. Aggrieved by it, the insurance company preferred this appeal. 6. Heard arguments of Sri N.Kesava Kumari, the learned counsel for appellant/insurance company and Sri Harinath Reddy Soma, the learned counsel for respondent Nos.1 and 2/ claimants. No arguments were submitted on behalf of respondent Nos.3 and 4/driver and owner. 7. The main contention of the learned counsel for appellant/ insurance company is that the evidence on record would indicate that the driver of the offending vehicle did not possess valid and effective driving licence at the material point of time. Therefore, the tribunal ought to have absolved the insurance company from 6 Dr.VRKSJ MACMA.No.1221 of 2013 liability and at any rate would have applied the doctrine of pay and recovery and as it failed to do it, this appeal is preferred. Learned counsel for respondent Nos.1 and 2 submit that the learned claims tribunal appropriately considered the facts and law and no interference is required in this appeal. 8. The points that fall for consideration are 1. Whether the impugned award fastened liability against insurance company in violation of principles? 2. Whether doctrine of pay and recovery can be applied to this case? POINT Nos.1 and 2: - The offending vehicle involved in this case is a two wheeler/motor cycle bearing registration No.AP 16 S 2351. As per Ex.B4/copy of insurance policy, at the material point of time, the vehicle was insured. R4 in the present appeal was the owner/insured. R3 in this appeal was the driver at the material point of time. Referring to the driving licence of R3, there is on record, the evidence of RW.1/ officer from the RTA office. As per his evidence and Ex.B2 driving licence, R3 was authorized to drive Light motor vehicle, motor cab and heavy transport and non transport and passengers and goods carrying vehicles .However, at the material point of time, the driver/R3 was found driving a motor cycle. From this evidence, it is clear that much bigger vehicles were permitted to be driven by the offending driver and all those vehicles to which he was licenced to drive were vehicles with gear. However, there was no specific endorsement or licence 9. 7 Dr.VRKSJ MACMA.No.1221 of 2013 ■Ji. for him to drive a motor cycle with gear. The evidence of RW.1 indicated the possibility of the driver/R3 obtaining a driving licence to drive a motor cycle with gear from a different Road Transport Authority. It was in the background of these facts, the liability in this regard has to be considered. In the celebrated judgment of the Hon’ble Supreme Court of India in National Insurance Company Limited V. Swaran Singh^ their Lordships held that in those cases where the driver was found driving one type of vehicle but was having valid and effective driving licence to drive another type of vehicle, the point to be considered is whether on facts, the evidence was sufficient to hold that because of this variance only, the accident occurred. In the case at hand, one would not notice any tangible evidence led by either side to determine that fact. Their Lordships in the above referred case further held that in such cases, the court can consider to make a provision to the insurance company to recover from the owner of the offending vehicle. In the case at hand, the owner of the vehicle was none other than the very brother of the driver of the offending vehicle. Being brother he must be knowing very well as to the nature of driving licence possessed by the driver. In such circumstances, the contention of the insurance company that the owner had knowingly entrusted the vehicle to his brother who did not possess a driving licence to drive a motor cycle with gear. That being a violation of policy condition, it is an eminent case to direct the insurance company to pay first and recover later from the owner without any need for 10. 12004 (3) see 297 8 Dr.VRKS,J MACMA.No.1221 of 2013 any further litigation especially since the owner and driver did not choose to contest either before the claims tribunal or before this court. In that way, the impugned award is required to be modified. Point is answered accordingly. 11. In the result, this appeal is allowed in the following manner. The amount of compensation and the rate of interest and other directions prescribed in the impugned award shall remain intact. The Insurance company has to comply with the award and is directed to deposit the awarded amounts along with interest within a period of one month from the date of this order after giving due credit to any amounts already deposited. There shall be no order as to costs in this appeal. It is made clear that the appellant/ Insurance company is entitled to execute this award and recover the amount from the owner/ respondent No.4. As a sequel, miscellaneous applications, pending, if any, shall stand closed. Sd/- K KASIRAO ACHARI ASSISTANT REGISTRY //TRUE COPY// SECTION OFFICER To, 1. The Chairman, Motor Accidents Claims Tribunal (VIII Addl. District Court) East Godavari Rajahmundry (with records) 2. One CC to Sri Kesavi Kumari Nemala, Advocate [OPUC] 3. One CC to Sri Harinath Reddy Soma, Advocate [OPUC] 4. The Section Officer, V R Section, High Court of Andhra Pradesh at Amaravathi. 5. Three CD Copies PR HIGH COURT DATED:19/02/2025 JUDGMENT + DECREE MACMA.No.1221 of 2013 ^ 0 7 MAR 2125 :v . Current Section ^^spatcW^,^ ALLOWING THE MAGMA IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY ,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR MACMA NO: 1221 OF 2013 Between: The New India Assurance Co Ltd, rep by its Divisional Manager 0/o.Rajahmundry. ...Appellant / Respondent No.3 AND 1. Namadi Yesu, S/o.Vanumula, Aged 48 Yrs, Hindu R/o.5-54, Angara Kapileswarapuram [M], East Godavari District. 2. Namadi Surya Kantham, W/o.Yesu, Aged 41 Yrs, Hindu R/o.5-54, Angara, Kapileswarapuram [M], East Godavari District. ...Respondents / Petitioners 3. Yerramsetti Chinna Hanumantha Rao, S/o.Madhusudhana Rao, Aged 29 Yrs, Occ: Driver of Hero Honda Splendor No.AP 16 S 2351 R/o.61- 28/4, RL Nagar, Alla Challarao Street, Vijayawada. 4. Yerramsetti Veera Hanumantha Rao, S/o.Madhusudhana Rao, Aged 31 Yrs, Occ: Driver of Hero Honda Splendor No.AP 16 S 2351 R/o.2-267, Nizampeta, Gudiwada. ...Respondents / Respondents Appeal filed under Section 173 of Motor Vehicles Act, aggrieved by the orders passed by way of judgment and Decree in M.V.O.P.No.399 of 2009, dated 08.05.2012 on the file of the Chairman, Motor Accidents Claims Tribunal (VIII Additional District Court) East Godavari Rajahmundry. w This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the trial Court and the material papers in the^ Suit and upon hearing the arguments of Sri Kesavi Kumari Nemala for the of Sri HARINATH REDDY SOMA for the Respondent Nos.1 & . - AppellanTand, 2 This Court doth Order and decree as follows: 1. That the Appeal be and is hereby allowed. the amount of compensation and the rate of interest and other 2. That directions prescribed in the impugned award shall remain intact, has to comply with the award be and is 3. That the Insurance company hereby directed to deposit the awarded amounts along with interest within a period of one month from the date of this order after giving due credit to any amounts already deposited. 4. That the Appellant / Insurance company is entitled to execute this award and recover the amount from the owner / Respondent No.4 5. That there shall be no order as to costs in this Motor Accident Civil Miscellaneous Appeal. Sd/- K KASIRAO ACHARI ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Chairman, Motor Accidents Claims Tribunal (VIII Additional District Court) East Godavari Rajahmundry. 2. Three CD Copies Pr vna f HIGH COURT DATED:19/02/2025 DECREE MACMA.No.1221 of 2013 pc 0 7 WAR 2025 ^ ^ current Section hLPi^S PATC'^^ ALLOWING THE MAGMA