APHC010151682022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY, THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 196/2022 Between: 1. BAYALAPPAGARI ANJANAMMA, W/O LATE NAGAPPA, AGED 55 YEARS, R/O D.NO.1-56-D, B.C.COLONY, ADDAKULAPALLI MANDAL, ANANTAPUR DIST. RESIDING AT B.K.SAMUDRAM VILLAGE AND MANDAL, ANANTAPUR DIST. 2. KURUBA JAYA SUDHA, W/O NAGARAJU, AGED 38 YEARS, OCC. AGRICULTURE AND COOLIE R/O B.C.COLONY,ADDAKULAPALLI VILLAGE, PENUKONDA MANDAL, ANANTAPUR DIST. RESIDING AT B.K.SAMUDRAM VILLAGE AND MANDAL, ANANTAPUR DIST. 3. BAYALAPPAGARI VENKATESULU @ KURUBA VENKATESULU, S/O LATE NAGAPPA, AGED 34 YEARS, OCC. COOLIE R/O JANACHAITANYA NAGAR, B.K.SAMUDRAM VILLAGE AND MANDAL, ANANTAPUR DIST. RESIDING AT B.K.SAMUDRAM VILLAGE AND MANDAL, ANANTAPUR DIST. 4. AKKULAPPAGARI SANTHAMMA, W/O NAGARAJU, AGED 30 YEARS, OCC. COOLIE R/O D.NO.6-289, B.C.COLONY, ADDAKULAPALLI VILLAGE, PENUKONDA MANDAL, ANANTAPUR DIST. RESIDING AT B.K.SAMUDRAM VILLAGE AND MANDAL, ANANTAPUR DIST. 5. REKULAKUNTA SUNEETHA, W/O K.SURENDRA BABU, AGED 28 YEARS, OCC. COOLIE, R/O D.NO.2-78, B.C.COLONY, GOWDANAHALLI VILLAGE, MADAKASIRA MANDAL, ANANTAPUR DIST. RESIDING AT B.K.SAMUDRAM VILLAGE AND MANDAL, ANANTAPUR DIST. 2 VS,J MACMA.No.196 of 2022 ...APPELLANT(S) AND 1. ESREGUMPU KRISHNA NAIK, S/O CHENNDE NAIK, AGED 35 YEARS, R/O D.NO.3-31-A, JALLIPALLI THANDA, ADDAKULAPALLI VILLAGE, PENUKONDA MANDAL, ANANTAPUR DIST. (DRIVER OF THE OFFENDING VEHICLE) 2. KAPPALA PARANDAMA, S/O PALAPPA, R/O D.NO.8-82, B.C.COLONY, SESHADRI BHATRA HALLI, KUNTIMADDI, RAMAGIRI MANDAL, ANANTAPUR DIST. (OWNER OF THE CRIME VEHICLE AUTO BEARING REGISTRARTION NO. AP 02 TC 0048) 3. THE DIVISIONAL MANAGERLEGAL CELL, THE ORIENTAL INSURANCE COMPANY LIMITED, ANANTAPUR(UNDER THE POLICY NO.432400/31/2017/2787 VALIDITY FROM 07-03-2017 TO 08-03-2018) ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying that the High Court may be pleased to memorandum of appeal being aggrieved by the order and decree passed in MVOP.No.380 of 2017 dated 24.12.2021 on the file of the MACT- Cum-Family Court-Cum-VII Additional District Court, Anantapur. Counsel for the Appellant(S): 1. M KARIBASAIAH Counsel for the Respondent(S): 1. M SOLOMON RAJU 2. The Court made the following: 3 VS,J MACMA.No.196 of 2022 JUDGMENT: The appellants/claimants filed the present appeal challenging the order and decree dated 24.12.2021 passed in M.V.O.P.No.380 of 2017 by the Motor Accidents Claims Tribunal-cum-VII Additional District Judge, Anantapur, whereby and whereunder the Tribunal granted compensation of Rs.3,90,000/- (Rupees Three lakhs and Ninety thousand only), as against the claim of Rs.4,00,000/-, on account of the death of the deceased Bayalappagari Nagappa in a motor accident that occurred on 26.05.2017. 02. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 03. The claimants filed the claim petition before the Tribunal under Sections 140 and 166 of Motor Vehicles Act, 1988 and Rules 455 and 475 of A.P.M.V. Rules, the case of the petitioners, in brief, is as follows: On 26.05.2017 at about 5.45 am, the deceased along with others boarded into the auto bearing No.AP02-TC-0048 and travelled for attending Upadi coolie work from their village i.e., Adadakulapalli and proceeded towards Penukonda. When the said auto about to reach Railway gate of Madakasira Petlu on Penukonda-Madakasira road, in the meanwhile, the driver of the said auto drove it in a rash and negligent manner with high speed with intention to stop the vehicle and applied sudden break. The driver of the said auto was unable to control the said auto which resulted turned turtle. As a result of which the deceased fell down and sustained bleeding head injuries 4 VS,J MACMA.No.196 of 2022 and died on the spot. It is further case of the petitioners that the Penukonda police registered a case in Crime No.68 of 2017 for the offence under Section 337 and 304(A) IPC against respondent No.1. The deceased was aged about 60 years at the time of accident and he is a cultivator and coolie and the deceased used to earn an amount of Rs.8,000/- per month. Seeking compensation of Rs.4,00,000/- for the death of the deceased in the said accident, the petitioners, who are the wife, daughters and son of the deceased, filed the claim petition against the driver, owner and insurer of the crime vehicle. 04. Before the Tribunal, the 2nd respondent-owner of the vehicle remained ex parte. 05. The 1st respondent filed a detailed counter denying the manner of accident, age and income of the deceased and also denied the allegation of rash and negligent driving and submitted that the vehicle is insured with the 3rd respondent. Hence, the 1st respondent pleaded the liability on the part of the 3rd respondent in terms of the policy. 06. The 3rd respondent filed a detailed counter contending that the petition is not maintainable either under law or on facts. The contention of the 3rd respondent is that the driver of the crime vehicle was not having valid and effective driving license at the time of accident and the owner of the offending vehicle violated the terms of the conditions of the policy as such the 3rd respondent is not liable to pay any compensation on behalf of the 1st and 2nd 5 VS,J MACMA.No.196 of 2022 respondents. The 3rd respondent denied the manner of accident and the date of accident also the death of the deceased in the said accident. The 3rd respondent also denied the age and earnings of the deceased apart from the relationship of the deceased with the petitioners. The 3rd respondent also denied the policy of insurance in the name of the vehicle auto bearing No.AP02-TC-0048 and also denied the rash and negligent allegation on the driver of the auto and 3rd respondent also taken statutory defence and hence, it was prayed to dismiss the claim petition against the 3rd respondent. 07. Basing on the pleadings, the Tribunal framed the following issues for trial: “1. Whether 1st respondent on 26.05.2017 at 5.45 am near Railway gate of Madakasira Petlu on Penukonda-Madakasira Road drove the auto bearing No.AP02-TC-0048 in a rash and negligent manner and caused the accident and the death of the deceased Bayalappagari Nagappa? 2. Whether the petitioners are entitled for compensation, if so how much and from whom? 3. To what relief?” 08. On behalf of the petitioners/claimants, P.W.1 was examined and Exs.A1 to A5 were marked. On behalf of the 3rd respondent, R.Ws.1 and 2 were examined and Exs.B1 to B3 were marked. 09. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed the claim petition, awarding compensation of Rs.3,90,000/- in favour of the petitioner 6 VS,J MACMA.No.196 of 2022 Nos.1 and 3 and against the respondent Nos.1 and 2 jointly and severally with proportionate costs and interest @ 7% per annum thereon from the date of filing of the petition and till the date of award and subsequent interest @ 6% per annum from the date of award and till the date of realization. The claim of the petitioner Nos.2, 4 and 5 is hereby dismissed without costs. The claim against 3rd respondent is also dismissed without costs. The respondent Nos.1 and 2 shall deposit the entire amount of compensation along with interest and costs within three months from the date of award. Out of the said amount of compensation, the 1st and 3rd petitioners are entitled to share equally being class-I heirs. Out of the share amount of the 1st petitioner, the 1st petitioner is permitted to withdraw an amount of Rs.1,50,000/- and the rest of the amount of the 1st petitioner shall be kept in FDR for a period of one year. Out of the share amount of the 3rd petitioner, the 3rd petitioner is permitted to withdraw an amount of Rs.1,00,000/- and the rest of the amount of the 3rd petitioner shall be kept in FDR for a period of one year. 10. Aggrieved by the said award, the appellants/claimants preferred this appeal contending that the Tribunal totally failed to consider that the driver of the vehicle is not having driving license which is a settled law and admitted by Rw.2 who categorically stated that one can take the driving license from any RTO office in India by submitting their address particulars and further admitted that the permit of the vehicle was in force at the time of accident. The Tribunal grossly erred in not considering the future prospects of the deceased. The Tribunal failed to consider that on the day of accident, the policy was in force 7 VS,J MACMA.No.196 of 2022 which is marked as Ex.B1. But court below on flimsy ground exonerated the insurance company from paying the compensation. Therefore, prayed to allow the appeal. 11. On the other hand, learned counsel for the respondents/respondent Nos.1 to 3 herein has supported the impugned award and prayed to dismiss the appeal. 12. Though notice was served on the 2nd respondent/owner of the offending vehicle, there is no representation on his behalf. 13. Now the point for consideration is: Whether the order of the Tribunal needs any interference? POINT: 14. In the case on hand, it was established from the evidence on record and as concluded by the Tribunal that the accident had occurred due to rash and negligent driving of the crime vehicle and the deceased sustained bleeding head injuries in the said accident and died on the spot. The tribunal, on the analysis of the entire evidence, rightly held that the accident was due to rash and negligent driving of the driver of the offending vehicle. 15. The appeal has been preferred on the ground that the respondent No.3 was not jointly and severally made liable for the payment of the compensation. 16. On perusal of the award passed by the Tribunal, it can be observed that respondent Nos.1 and 2 remained absent, and all the respondents failed to 8 VS,J MACMA.No.196 of 2022 establish any contra evidence to the case of the petitioners/claimants. Basing on the evidence of PW1, RW1 and RW2 read with Exs.A1 to A5 and Exs.B1 to B3, it was established that respondent No.1 drove the auto bearing No. AP 02 TC 0048 in a rash and negligent manner on 26.05.2017 resulting in the death of the deceased. Though it is the evidence of RW1 that the policy under Ex.B1 was in force at the time of accident, the Tribunal considering Exs.A1 to A5, which are nothing but copy of F.I.R., inquest report, P.M.Certificate, MVI report, and charge sheet, which in fact was filed against respondent Nos.1 and 2 for the offence under section 337, 304-A, 304-II IPC and section 177, 180 and 181 of the M.V.Act., held that respondent No.1 was not holding any driving license at the time of the accident. It is the evidence of RW1 that the policy was in existence as on the date of the accident, but the driver of the said offending vehicle was not holding valid driving license, which in fact is in violation of policy conditions. 17. Under similar circumstances, the Hon’ble Supreme Court in “National Insurance Co. Ltd. V. Swaran Singh & Ors.1” Has categorically held that the insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount it can recover the entire amount paid to the third party on behalf of the assured. Therefore, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. 1 (2004) 3 SCC 297 9 VS,J MACMA.No.196 of 2022 18. In “National Insurance Co. Ltd. V. Swaran Singh & Ors.,” (referred above) the Hon’ble Supreme Court while dealing with the case of unauthorized passengers held as follows: “Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with Sub- section (1) thereof. The right to avoid liability in terms of Sub- section (2) of Section 149 is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading.” 19. As per the law laid down by the Hon’ble Supreme Court in the Judgment (referred supra) even if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the claimant and then recover the amount from the insured 10 VS,J MACMA.No.196 of 2022 (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies 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. 20. In the case on hand, the evidence adduced by the claimants before the Tribunal would substantially prove that the accident occurred due to the rash and negligent driving of respondent No.1 – driver of the auto bearing No. AP 16 TB 3373, wherein the deceased was travelling. In view of the same and in the light of the decision of the Hon’ble Supreme Court referred to supra, the contention of respondent No.3 – insurance company that it cannot be directed to pay the compensation cannot be accepted. In view of the same, this Court is of the considered opinion that the respondent No.3 is also jointly and severally liable to pay compensation to the claimants. 21. So far as the quantum of compensation is concerned, the claimants contended that the deceased was working as a Upadi Hami Coolie as on the date of accident. In the absence of any evidence to prove the income of the deceased, the Tribunal took the income of the deceased is as Rs.5,000/- per month and annual income would be Rs.60,000/-(Rs.5,000/- x 12). As the age of the deceased was 65 years as on the date of accident, the Tribunal below rightly applied the multiplier as ‘7’ in view of the law laid down by the Apex Court in Sarla Varma vs. Delhi Transport Corporation Ltd2. Out of five, the 2 2009 ACJ 1298 11 VS,J MACMA.No.196 of 2022 claim of three petitioners is ignored and the relief of two petitioners is considered. By deducting 1/3rd annual income (Rs.60,000/- / 3 = Rs.20,000/-) towards personal expenses, the actual annual contribution of the deceased to his family members would be Rs.40,000/- ((Rs.60,000/- - Rs.20,000/-) and after applying the multiplier ‘7’, it would come to Rs.2,80,000/-. In addition to the above, the Tribunal also awarded Rs.15,000/- under the head of loss of estate, Rs.15,000/- under the head of funeral expenses and Rs.40,000/- under the head of spousal consortium and Rs.40,000/- under the head of Filial consortium. In total, the Tribunal below awarded Rs.3,90,000/- (Rs.2,80,000/- + Rs.15,000/- + Rs.15,000/- + Rs.40,000/- + Rs.40,000/-) to the claimants. Thus, no interference is required with the said finding of the Tribunal. 22. In view of the above discussion, while confirming the quantum of compensation awarded by the Tribunal, this Court deems it appropriate to modify the award passed by the Tribunal only to the extent of directing respondent No.3 – insurance company to initially pay the compensation to the appellants – claimants and then recover the amount from the owner of the vehicle. 23. Accordingly, the appeal is partly allowed directing respondent No.3 – Insurance company to initially pay the compensation amount of Rs.3,90,000/- along with interest at the rate of 6% p.a. from the date of petition till realization to the claimants, within a period of three months from the date of receipt of copy of the order and then recover the same from the insured-owner of the 12 VS,J MACMA.No.196 of 2022 offending vehicle (respondent No.2) by filing Execution proceedings before the Tribunal. No costs. Pending miscellaneous applications, if any, shall stand closed. ___________________ JUSTICE V.SUJATHA Date: 27.01.2026 PBS