The liability of the Insurance company to pay compensation to the petitioner in the first instance and later recover the same from the owner of the offending vehicle, even when the Insurance company could establish breach of terms of policy on the part of the owner of the offending vehicle.

JUDGMENT :

The appellant is claim petitioner and the respondents are respondents in M.V.O.P.No.584 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Vizianagaram. The appellant filed the appeal questioning the legal validity of the order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition.

3. The claim petitioner filed the petition under Section 163-A of the Motor Vehicles Act, 1988 claiming compensation of Rs.1,50,000/- for the injuries sustained by him in a motor vehicle accident that took place on 11.05.2007.

4. The brief averments in the petition filed by the petitioner are as follows:

On 11.05.2007 the petitioner was proceeding in an auto bearing registration No.AP 35U 1702 with a band party to attend a marriage at Datti village via Kothavalasa and when the auto reached near Nimmalapalem bridge at 22.15 hours, a motor cycle bearing registration No.AP 31AN 4194 being driven by the 1st respondent/driver in a rash and negligent manner came in opposite direction and dashed on the right side of the auto, as a result, the auto turned turtle on the road and the petitioner sustained simple and grievous injuries. The S.H.O., Kothavalasa P.S. registered a case in Crime No.82 of 2007 for the offence under Section 338 of I.P.C. The 1st respondent being the driver cum owner of the motor cycle, the 2nd respondent being the Insurance company of the said vehicle, the 3rd respondent being the driver cum owner of the auto and the 4th respondent being the insurer of the said vehicle are jointly and severally liable to pay compensation to the petitioner.

5. The 3rd respondent was set ex parte. Respondent Nos.1, 2 and 4 filed counters separately by denying the manner of accident. It is pleaded by the 1st respondent that the accident took place only due to rash and negligent driving of the driver of the auto and there is no negligence on his part. It is pleaded by the 2nd respondent/Insurance company that the accident occurred due to contributory negligence of the petitioner, as such, the 2nd respondent is not entitled to pay compensation and the 3rd respondent, who is the owner cum driver of the auto violated the terms and conditions of the policy. It is pleaded by the 4th respondent/Insurance company that the 3rd respondent violated the terms and conditions of the policy.

6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:

1) Whether the pleaded accident occurred resulting in injuries to the petitioner due to his involvement in motor vehicle accident involving the motor cycle bearing No.AP 31 AN 8194 and auto bearing No.AP 35U 1702 when they were in use in a public place?

2) Whether the petitioner is entitled to any compensation and, if so, at what quantum and from which of the respondents?

3) To what relief?

7. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 were marked. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B.1 to B.6 and Exs.X.1 and X.2 were marked.

8. At the culmination of the enquiry, based on the material available on record, the Tribunal allowed the claim petition in part awarding an amount of Rs.54,600/- with proportionate costs and interest at 6% p.a. from the date of petition till the date of deposit against respondent No.1 alone while dismissing the claim petition against respondent Nos.2 to 4. Aggrieved against the exoneration of the Insurance company from the liability of payment of the compensation amount, the appellant/petitioner preferred the present appeal.

9. Heard learned counsels for both the parties and perused the record.

10. Learned counsel for the appellant/petitioner mainly contended that the 3rd respondent/Insurance company cannot escape from liability of payment of compensation on mere absence, fake or invalid license or d