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2014 Supreme(AP) 2
HIGH COURT OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Bajaj Allianz General Insurance Co. Ltd.
Versus
Mojes & Another
M.A.C.M.A. No. 2842 of 2011
Decided On : 02-01-2014
For the Appellant:T. Mahender Rao, Advocate.
Just compensation is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong.
Headnote:(A) Motor Vehicles Act, 1988-Sections 168 and 173-Motor insurance-Driving license- Where breach is ex-facie apparent from record, court need not fasten liability on insurer---In certain situations, court while fastening liability on insured, may direct insurer to pay to claimants and recover the same from insured-It is insurer also along with insured owner of crime vehicle jointly and severally liable to pay compensation to claimant and then it is for insurer to recover from owner of vehicle by filing execution petition in same award without need of any separate proceedings.
(B) Motor Vehicles Act, 1988-Section 168-Compensation-Assesssment-In most of the cases involving Motor Accidents, by looking at totality of circumstances, inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.
Result-Appeal Partly allowed.
1. The 2nd respondent-insurance company, in the claim petition, filed this appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal–cum-IV Additional District Judge, Kurnool, (for short, ’Tribunal’) in M.V.O.P.No.653 of 2008 dated 01.07.2011, awarding compensation of Rs.25,000/-(Rupees Twenty five thousand only) with interest at 9% per annum as against the claim of the claimant of Rs.1,00,000/-(Rupees one lakh only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).
2. Heard Sri T. Mahender Rao, the learned standing counsel for the appellant-insurance company. The respondent No.1 unserved and the respondent No.2 served but not appeared and thus taken as heard to decide on merits. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
3. The contentions in the grounds of appeal as well as oral submissions by the appellant-insurance company in nutshell are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case and ought to have dismissed the claim petition contending that the Tribunal gravely erred in observing that the insurer failed to prove as required by law the factum of the driver in not possessed valid driving licence despite the fact remains from Ex.B-3 notice issued to the 1st respondent owner to produce driving licence of the driver and R.Ws 1 to 3 who spoke in proof of the fact that Ex.B-2 driving licence extract issued to the driver of the crime auto clearly discloses that the driver of the crime vehicle was not authorized to drive the insured auto which is a commercial vehicle which is more than enough in discharging the burden on the part of the insurer and once the driver not possessed effective driving licence, the insurer cannot fasten any liability as per the expressions National Insurance Co. Ltd. V. Kanti Devi & others 2005 ACJ 1544, National Insurance Co. Ltd V. Kusum Rai & others 2006 ACJ 1336, Oriental Insurance Co. Ltd. V. Syed Ibrahim & others 2007 ACJ 2816, National Insurance Co. Ltd. V. Prabhu Lal 2008 ACJ 627, New India Assurance Co. Ltd. V. Roshanben R Fakir & another 2008 ACJ 2161, Oriental Insurance Co. Ltd. V. Angad Kol and others 2009 ACJ 1411and that the quantum of compensation awarded by the Tribunal is also on high side, hence to set aside the award of the Tribunal and also so far as fixing the liability by exonerating the insurer.
4. Now the points that arise for consideration in the appeal are:
1. Whether the award of the Tribunal fastening joint liability on the insurer with insured to indemnify the insured for the claimant(s) and requires interference by this Court while sitting in the appeal?
2. Whether the quantum of compensation awarded by the Tribunal is not just and requires interference by this Court and if so with what extent and against whom with what rate of interest with what observations?
3. To what result?
POINT-1:
5. The facts are that on 06.08.2008 the injured boy (claimant) was traveling in the auto bearing No. AP 21 Y 0204 to go to Chippagiri village having boarded the auto at Guntakal and after reached Girimarrimanu village at about 7.45 a.m it was driven at high speed with rash and negligent manner and the driver has lost his control as a result of which it had turned turtle causing injuries to its inmates including the claimant are proved from the material on record and no way requires interference in the appeal. The Tribunal awarded an amount of Rs.25,000/-towards compensation with interest at 9% p.a. to the claimant under various heads.
6. Now coming to decide whether the insurer can be exonerated from liability to indemnify the insured to the third party claimants concerned:
i) No doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala & Others AIR 2009 SC 208, the two judge bench of the Apex Court in
