APHC010093192022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3367] TUESDAY ,THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V SRINIVAS MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 189/2022 Between: The Oriental Insurance Company Ltd ...APPELLANT AND Neelam Nirmal and Others ...RESPONDENT(S) Counsel for the Appellant: V DURGA Counsel for the Respondent(S): KOLUSU RAVIKIRAN KUMAR The Court made the following: JUDGMENT: This appeal is directed against the order of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-I Additional District Judge at Machilipatnam (hereinafter called as ‘the Tribunal’) in M.V.O.P.No.169 of 2014 dated 20.11.2019. 2. The appellant is the insurer of the motorcycle bearing No.AP 16 AG 3267 (hereinafter referred to as “crime motorcycle”). The respondent Nos.1 to 3, who are wife and children of one Nelam Adam (hereinafter called as “deceased”) 2 are the claimants before the Tribunal. The respondent Nos.4 and 5 are the driver and owner of the said crime motorcycle. 3. For the sake of convenience, the parties hereinafter referred to as they arrayed before the tribunal. 4. The case of the claimants, in the petition before the Tribunal is that: i). On 27.03.2013, while the deceased proceeding on his motorcycle bearing No.AP 16 AW 9120, when he reached near the cross road of Rudravam on Bandar – Challapalli road, the 1st respondent, who is coming in opposite direction on crime motorcycle along with pillion rider in a rash and negligent manner dashed the deceased, resulted the deceased fell on the road and died on the spot. ii). The deceased is a retired APSRTC employee and contributed his earning for the welfare of the family. He claimed compensation of Rs.4,00,000/- against the driver, owner and insurer of the crime motorcycle. 3 5. The respondent No.1/driver of the crime motorcycle filed counter denying the averments in the petition and pleaded that the compensation claimed by the claimant is excessive, thereby, prayed to dismiss the claim against this respondent. 6. The respondent No.3/insurer of the crime motorcycle filed counter denying the averments in the petition and pleaded that the accident occurred was due to the rash and negligent driving of the deceased, but not 1st respondent; that the petition is bad for non-joinder of necessary parties i.e., owner and insurer of the motorcycle on which the deceased was proceeding by the date of incident; that the insurance issued in respect of the crime motorcycle is not in force by the date of incident, thereby, prayed to dismiss the claim against this respondent. 7. The Tribunal settled the following issues and additional issues for enquiry basing on the material: “1.Whether there is rash and negligent driving on the part of 1st respondent driver of motorcycle in this accident resulting death of Neelam Adam? 4 2.Whether the driver of offending vehicle was having valid and effective driving license at the time of accident? 3.Whether the petitioners are entitled to compensation? If so, to what extent? and from which of the respondents? and 4.To what relief?” 8. During enquiry, on behalf of the claimant, P.Ws.1 and 2 were examined, Exs.A.1 to A.4 were exhibited. On behalf of the respondent No.3, R.Ws.1 and 2 were examined and Ex.X.1 was marked. During cross examination of R.W.1, Ex.A.5 policy copy was marked. 9. On the material, the Tribunal, having come to the conclusion that the accident occurred due to the rash and negligent riding of the 1st respondent, held that claimant is entitled for the compensation of Rs.3,58,000/-, with interest at 9% per annum from the date of petition till the date of realization against the respondent Nos.1 and 2, for the death of the deceased in the accident. However, directed the respondent No.3/insurer to pay the said compensation at first instance and then recover of the same from the owner of the crime motorcycle 5 in the absence of driving license to the 1st respondent to ride the same. 10. It is against the said award; the present appeal was preferred by the appellant/insurer of the crime motorcycle. 11. Heard Smt.V.Durga, learned counsel for the appellant/insurer. None appeared on behalf of the respondents even sufficient opportunity is given. 12. Now, the point that arise for determination is “whether the order of the Tribunal is liable to be set aside, if so, to what extent?” 13. POINT: It is not in dispute about the death of the deceased in the accident, involvement of crime motorcycle, rash and negligent riding of the 1st respondent in causing the incident, quantum of compensation awarded by the Tribunal, Ex.A.5 policy issued in respect of the crime motorcycle is in force by the date of incident. It is also not in dispute that no appeal was preferred by the claimants, driver and owner of the crime motorcycle against the findings of the Tribunal. 6 14. The only contention raised by the learned counsel for the appellant is that in the absence of driving license to the 1st respondent in riding the crime motorcycle, the Tribunal erred in ordering pay and recovery against the appellant/insurer. 15. It is an undisputed fact in view of the testimony of R.W.2 coupled with Ex.X.1, it is categorical that the 1st respondent driver of the crime vehicle is not possessing license to drive the same, thereby, violated the terms of Ex.A.5 policy. 16. Now, to decide the above point, it is relevant to refer the certain pronouncements of Hon’ble Supreme Court in Shamanna v. Divisional Manager, Oriental Insurance Company Limited1, wherein it was held that “where the driver did not possess the valid driving license and there are breach of policy conditions, “pay and recover” can be ordered in case of third party risks….. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle.” 1 2018 LawSuit(SC) 722 7 17. It is also required to refer another Three Judge Bench pronouncement of Hon’ble Supreme Court in Singh Ram v. Nirmala2, wherein it was categorically held at paragraph Nos.8 and 9 that: “8.In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a license which was found to be fake. Another license which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had failed to take reasonable care (proposition (vii) of Swaran Singh) (AIR 2004 SC 1531) since he could not have been unmindful of facts which were within his knowledge. 9.In the circumstances, the direction by the Tribunal, confirmed by the High Court, to pay and recover cannot be faulted. The appeal is accordingly, dismissed. There shall be no order as to costs.” 2 AIR 2018 SC 1290 8 18. Furthermore, the Hon’ble Supreme Court in Manuara Khatun v. Rajesh Kumar Singh3, by referring and relying on its earlier pronouncement in National Insurance Company Limited v. Saju P.Paul4, categorically observed at paragraph Nos.15 and 21 that: “15…..This Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of “pay and recover. 21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (Respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending 3 (2017) 4 SCC 796 4 (2013) 2 SCC 41 9 vehicle (Tata Sumo) Respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul’s case quoted supra.” (emphasis supplied) 19. Having regard to the above categorical precedents, in view of the facts and circumstances of the case, since it is beneficial piece of legislation and the policy issued in respect of the crime vehicle is in force by the time of incident, a direction can be issued against the insurer of the crime motorcycle to pay the awarded sum to the claimants at first instance and then recover the same from the insured/owner/2nd respondent, because as stated supra the accident occurred only due to the rash and negligent riding of the crime motorcycle by the 1st respondent, resulted the incident. Thereby, the Tribunal rightly ordered pay and recovery against the appellant/insurer, which requires no interference. 10 20. It is needless to say that the Tribunal by considering the material on record rightly calculated and awarded compensation entitled by the claimants, which is not in dispute. 21. In view of the above discussion, this Court is of the considered opinion that no valid grounds urged by the appellant to interfere with the findings arrived by the Tribunal in all aspects, as there is no need to disturb the well-articulated order passed by the Tribunal, the appeal preferred by the appellant is liable for dismissal. Thus, the point is answered accordingly. 22. In the result, M.A.C.M.A. is dismissed. There shall be no order as to costs. Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed. _____________________ JUSTICE V.SRINIVAS Date: 01.04.2025 Krs 11 224 THE HON’BLE SRI JUSTICE V.SRINIVAS M.A.C.M.A.No.189 of 2022 (J U D G M E N T) DATE: 01.04.2025 Krs