APHC010086182022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] MONDAY,THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 99/2022 Between: 1. UNITED INDIA INSURANCE CO., LTD.,, REP, BY ITS DIVISIONAL MANAGER 15TH LANE, ARUNDELPET, KUBERA TOWERS GUNTUR ...APPELLANT AND 1. SHAIK MEERA BI, W/O. LATE MADAR @ MADAR VALI, 39 YEARS 2. SHAIK FARJANA, W/O. AZKAR, MUSLIM, 22 YEARS 3. SHAIK FARDHIN VALI, S/O, LATE MADAR @ MADAR VALI, 19 YEARS 4. SHAIK NANEE BI, W/O. LATE KHASIMPEERA, 70 YEARS ALL ARE R/O. D.NO. 2-110, KOMMALAPADU VILLAGE SANTHAMAGULURU (M), PRAKASAM DISTRICT 5. SAYED KANDAR MASTHAN, S/O. DARIYA HUSSAIN , R/O. D.NO. 2- 110, R/O. D.NO. 3-110, KOMMALAPADU VILLAGE SANTHAMAGULURU (M), PRAKASAM DISTRICT 6. YAIKANTI SHAIAH KHADAR VALI, S/O. SHAIK ABDUL SHAKUR, R/O. D.NO. 1-176, KOMMALAPADU VILLAGE SANTHAMAGULURU (M), PRAKASAM DISTRICT ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased topleased to allow this appeal by setting aside the judgment and 2 CGR,J M.A.C.M.A.NO.99 OF 2022 decree passed in Order in M.V.O.P. No.237/2016 dated 28-02-2020 on the file of the Court of the Motor Vehicles Accidents Claims Tribunal Cum IV Additional District judge, Guntur IA NO: 1 OF 2022 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 pleased to stay the execution of the decree and Judgment in M.V.O.P. No. 237/2016 dated 28-02¬2020 on the file of the Court of the Motor Vehicles Accidents Claims Tribunal Cum IV Additional Dist-ict judge, Guntur, pending disposal of the appeal and pass Counsel for the Appellant: 1. N RAMA KRISHNA Counsel for the Respondent(S): 1. The Court made the following: 3 CGR,J M.A.C.M.A.NO.99 OF 2022 JUDGMENT:- The appellant/insurer preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter for short the ‘Act’), assailing the order passed by Motor Vehicle Accidents Claims Tribunal-cum-IV Additional District Judge, Guntur in M.V.O.P.No.237 of 2016, to the extent of making it liable for compensation by applying pay and recovery principle. 2. For the sake of convenience, parties herein are referred to as they were arrayed before the Tribunal. 3. The wife, two children and mother of deceased instituted claim under Section 166 of the Act claiming compensation of Rs.10,00,000/-, due to death occurred on account of the Motor Accident. On 16.09.2019, while deceased was travelling in TATA ACE bearing No.AP 27 W 5194, with load of dry fish, on account of rash and negligent driving of the 3rd respondent-driver of offending vehicle, he fell down and sustained multiple injuries, he was shifted to Government hospital for treatment where he succumbed on 17.10.2009. The deceased was stated to be aged about 38 years and in the business of dry fish earning about Rs.10,000/- per month. Therefore, claim was laid for compensation of Rs,10,00,000/-. The respondent Nos.1 and 3, who are the owner and driver of the offending van remained ex-parte and 2nd respondent/insurer filed written statement inter-alia denying that the accident occurred due to rash and negligent driving of the driver of the van, besides, contending that the driver did not possess effective driving license to drive transport vehicle i.e., LMV non-transport license. Further, that the deceased 4 CGR,J M.A.C.M.A.NO.99 OF 2022 could not have travelled sitting on the van, which itself was negligence. To support the claim, wife of deceased was examined as PW-1 and eye witness who was incidentally travelling in the same van as PW-2 and marked exhibits as A1 to A5. Similarly, officer of insurer was examined as RW-1 and officer of RTA as RW-2 and marked exhibits as B1 to B4. Based on pleadings of respective parties, the Tribunal has framed following issues: “1.Whether the accident occurred due to the rash and negligent driving of the driver of the TATA ACE van bearing No.AP 27 W 5194? 2. Whether the petitioner is entitled to compensation, if so, to what amount and against whom? 3. To what relief?” 4. Considering the evidence on record, in particular eye witness, evidence of PW-2, who was co-passenger, and also documentary evidence marked as exhibits A1 to A5, the Tribunal has come to a conclusion that the accident occurred on account of rash and negligent driving of the 3rd respondent. With regard to other issue, though stand was taken by insurer that the driver did not possess valid driving license, to support the contention RW-2 was examined, since the driver possessed light motor vehicle non-transport license: Placing reliance on the judgment of the Hon’ble Apex Court in S.Ayappan vs. United India Insurance Co., Ltd., 1, the contention has been rejected and ultimately the insurer was directed to pay compensation and recover the same from the owner of the crime vehicle. The Tribunal has considered the income of deceased as Rs.4,500/- per month on notional basis, as claimants could not 1 AIR 2013 SC 2262 5 CGR,J M.A.C.M.A.NO.99 OF 2022 produce any evidence to support the claim of Rs.10,000/- per month. By adding future prospects and deducting 1/4th towards personal expenses, applying multiplier of 15, the Tribunal has awarded Rs.8,50,500/- towards loss of dependency, it also granted Rs.52,000/- towards loss of consortium, Rs.19,500/- towards loss of estate and Rs.19,500/- towards funeral expenses, in total Rs.9,41,500/-. The aforesaid compensation was directed to be paid along with the interest at the rate of 7.5% from the date of petition, till realization. Assailing the same, the present appeal is filed. 5. Heard Sri Gudi Srinivasu Rao, learned counsel for the appellant. 6. None appears for the respondents, despite service of notice to the respondents. 7. The learned counsel for appellant mainly contended that as the Tribunal itself found that the driver of the offending vehicle did not possess valid and effective driving license to drive goods vehicle, the Tribunal ought not to have applied pay and recovery principle and directed the appellant to incur the liability. He further contended that the Tribunal has failed to consider the aspect of self-negligence by the deceased, inasmuch as he was sitting on the top of the van, which essentially was goods vehicle, therefore, he contributed to the cause of the accident. 8. Perused the record. 9. The deceased died on account of the accident occurred on 16.09.2019, while he was travelling in TATA ACE vehicle. It is the case of the claimants 6 CGR,J M.A.C.M.A.NO.99 OF 2022 that the driver of offending vehicle applied breaks suddenly resulting in deceased falling down from vehicle, resultantly sustained injuries and thereafter, died. The insurer had taken specific stand that the driver of the 3rd respondent only possessed the license for LMV non-transport vehicle. To establish the said fact, RW-2 was examined to produce the copy of said license. It is the submission of the insurer now that as the driver did not possess valid and effective driving license to drive the goods vehicle, the same amounts to violation of conditions of policy. Therefore, no liability ought to be fastened, muchless that of pay and recovery. The Tribunal has considered the aforesaid aspect and by following the judgment of Hon’ble Apex Court in S.Ayappan vs. United India Insurance Co., Ltd.,(Supra)1 come to a conclusion that even in spite of the driver of the offending vehicle having only license for LMV non- transport vehicle, still the insurer was required to pay the compensation and later recovery the same from the owner of the vehicle. Even, if it is a case of violation of conditions of the policy, now the law is settled, the insurer has to bear the compensation first and later recover from the insured. Therefore, conclusion arrived at by the Tribunal on aforesaid aspect is justified and deserve no indulgence. Insofar as, the other aspect that the deceased was self-negligent as he was travelling on the top of the van, which amounted to contributing the negligence, except for vague allegations, nothing has been brought on record by way of evidence to establish the said aspect. Even PW-2 co-passenger also spoke of travelling in the same van and nothing has been elicited from him during cross 7 CGR,J M.A.C.M.A.NO.99 OF 2022 examination. In the absence of any cogent evidence, to show that the deceased was sitting on the top of the van, only self serving statement of insurer would not suffice to establish the said fact. Hence, finding of fact recorded by the Tribunal, doesn’t suffer from any infirmity nor perverse. 10. In view of the same, this Court does not find any merit in the appeal. Accordingly, the same stand dismissed. No order as to costs. As a sequel, miscellaneous applications, pending if any, shall stand closed. _______________________ CHALLA GUNARANJAN, J 01.09.2025 LSP 8 CGR,J M.A.C.M.A.NO.99 OF 2022 274 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 99/2022 01.09.2025 LSP