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2020 Supreme(AP) 268
IN THE HIGH COURT OF ANDHRA PRADESH
M.SATYANARAYANA MURTHY, J.
Shaik Ahammad Basheer [Died] & Anr – Appellant
Versus
D.Sethamarai & Anr – Respondents
M.A.C.M.A.No.1378 of 2012
Decided on : 24-04-2020
Point of Law:
Even then, the insurance company cannot claim exemption from payment of compensation in view of the law declared by the Apex Court in “National Insurance Company Limited v. Swaran Singh, (2004) 3 SCC 297
Headnote:
Motor Vehicles Act, 1988 – Sections 173, 163A – Accident – Appeal under Section 173 of Motor Vehicles Act, 1988 is filed dissatisfied with award passed in O.P. by Motor Accidents Claims Tribunal whereby claim of appellant No.1 herein was allowed in part awarding total compensation of Rs.65,000/-only against respondent No.1 while dismissing claim against the other respondent i.e. respondent No.2 – Insurance company – Held, Insurance company has to pay the compensation awarded to the claimant, thereafter, recover the same from the owner of the vehicle in question – Appellants are entitled to claim compensation as awarded by Tribunal – Tribunal awarded compensation for two grievous injuries without specifying nature of claim – It was not challenged – Compensation awarded by the Tribunal cannot be disturbed – Appeal Partly Allowed (Paras 32, 33, 34)
Facts of the case:
Alleging that he received grievous injuries in road accident that took place on 18.08.2008 at about 09.45 a.m. near Kaluvapalli bridge on Anantapur-Kalyandurg road while he was travelling in a Maruthi Van bearing registration No.AP 03 P 2898 which will be herein after referred to as “accident vehicle” belonging to respondent No.1 and insured with respondent No.2. While the petitioner was proceeding along with others in the accident vehicle, when it reached the place of occurrence, the driver of the vehicle drove the same in rash and negligent manner, due to which the accident vehicle turned turtle and on account of such accident, the petitioner received grievous injuries besides other multiple injuries.
Findings of The court:
Insurance company has to pay the compensation awarded to the claimant, thereafter, recover the same from the owner of the vehicle in question – Appellants are entitled to claim compensation as awarded by Tribunal – Tribunal awarded compensation for two grievous injuries without specifying nature of claim – It was not challenged – Compensation awarded by the Tribunal cannot be disturbed
Result: Appeal Partly Allowed
JUDGMENT:
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “M.V.Act”) is filed dissatisfied with the award dated 20.11.2009 passed in O.P.No.885 of 2008 by the Motor Accidents Claims Tribunal (for short “the Tribunal”), Anantapur, whereby the claim of the appellant No.1 herein was allowed in part awarding total compensation of Rs.65,000/-only against respondent No.1 while dismissing the claim against the other respondent i.e. respondent No.2 – Insurance company.
2. Appellant No.1 was the injured claimant before the Tribunal. He filed the present appeal against the award passed in O.P.No.885 of 2008. But, during the pendency of the appeal, he died and appellant No.2 was brought on record as legal heir of the deceased appellant No.1.
3. Appellant No.1/petitioner filed the claim petition under Section 163-A of the M.V.Act before the Tribunal claiming compensation of Rs.1,00,000/-together with interest and costs against both the respondents alleging that he received grievous injuries in road accident that took place on 18.08.2008 at about 09.45 a.m. near Kaluvapalli bridge on Anantapur-Kalyandurg road while he was travelling in a Maruthi Van bearing registration No.AP 03 P 2898 which will be herein after referred to as “accident vehicle” belonging to respondent No.1 and insured with respondent No.2. While the petitioner was proceeding along with others in the accident vehicle, when it reached the place of occurrence, the driver of the vehicle drove the same in rash and negligent manner, due to which the accident vehicle turned turtle and on account of such accident, the petitioner received grievous injuries besides other multiple injuries. Immediately, he was shifted to Government Hospital for treatment, and that the police personnel of Beluguppa police station registered a case in Crime No.40 of 2008 against the driver of the accident vehicle for the offence punishable under Section 337 and 338 of the Indian Penal Code (for short “I.P.C.”). The petitioner incurred an amount of Rs.50,000/-towards medical expenses for the injuries he received in the accident and that he could not regain his normal health, ultimately resulted in loss of earnings from his flower business, as such he claimed total compensation of Rs.1,00,000/-under various heads, which will be referred at appropriate stage while deciding the claim of the petitioner.
4. Respondent No.1 – owner of the vehicle, remained exparte.
5. Respondent No.2 filed counter denying the material allegations in the petition filed by the petitioner calling upon the petitioner to prove that he lost his earning capacity to a tune of Rs.5,000/-per month from flower business.
6. It is specifically contended that the accident vehicle originally belongs to Smt.D.Senthamarai, respondent No.1 herein, which was insured with respondent No.2, but the liability of respondent No.2 is subject to the terms and conditions, exceptions and limitations and confirmation of the compliance of Section 64VB of the Insurance Act, 1938. Initially, respondent No.2 issued policy bearing No.0G-08-1801-1801-00038401 for the period from 22.11.2007 to 21.11.2008, as there is no intimation from respondent No.1 in the capacity of insured, respondent No.2 sent a letter with a request to produce the relevant record and information with regard to the alleged incident, and respondent No.1 gave reply intimating that she sold the vehicle to K.Ravindra Naik in the month of January 2008, as such the respondent No.2 has no locus standi to be impleaded as a party to the petition and that in the absence of impleading the purchaser, the claim of appellant No.1 is not maintainable. Appellant No.1 himself admitted that he was travelling as occupant of the car bearing No.AP 02 TV 0095, which was alleged to be involved in the accident. Thus, appellant No.1 is a gratuitous passenger, who is not required to be covered under Section 147 of the M.V.Act and the policy issued by respondent No.2 does not cover such risk.
