The liability of the Insurance Company to pay compensation to the petitioners in the first instance and later recover the same from the owner of the offending vehicle, as per the principle established in National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 (2) ALD (SC) 36.

JUDGMENT:

The appellants are claim petitioners and the respondents are respondents in M.V.O.P.No.291 of 2012 on the file of the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Machilipatnam.

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 petitioners filed the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.3,00,000/- for the death of Thota Mallesh, who is husband of 1st petitioner and father of petitioner Nos.2 & 3, in a motor vehicle accident that took place on 17.02.2012.

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

On 17.02.2012 the deceased went to the house of one Potharaju for undertaking construction of his house. After completing the mason work at about 7.00 p.m. he was waiting for a bus at Veerlankamma temple, Chorampudi village. Meanwhile, an auto bearing No.AP 16TA 6562 being driven by its driver in a rash and negligent manner at high speed came and dashed against the deceased, as a result, the deceased sustained grievous injuries and on 19.02.2012 he succumbed to injuries while undergoing treatment in the Government Hospital, Machilipatnam. Initially, a case in crime No.16 of 2012 was registered for the offence under Section 337 of IPC. Later, on receipt of death intimation of the deceased on 19.02.2012, the Section of law was altered to 304-A of IPC. After thorough investigation into the case, the police laid charge sheet against the driver of the auto. The 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the crime auto. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.

5. The 1st respondent was set ex parte.

6. Respondent Nos.2 and 3 filed counters separately by denying the manner of accident, age, avocation and income of the deceased. It is pleaded by the 2nd respondent that the accident occurred only due to negligence of the deceased himself. It is pleaded by the 3rd respondent/Insurance company that the driver of the auto was not having valid and effective driving licence at the time of accident and the deceased was travelling in the auto as an unauthorized passenger and thereby, the 2nd respondent violated the conditions of policy, as such, the insurance company is not liable to pay any compensation.

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

1) Whether the Thota Mallesh died in a motor vehicle accident occurred on 17.02.2012 due to rash and negligent driving of the driver of the auto bearing No.AP 16TA 6562?

2) Whether the petitioners are entitled to compensation? If so, what amount? And from which of the respondents?

3) To what relief?

8. During the course of enquiry in the claim petition, on behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.6 and Ex.X.1 were marked. On behalf of respondent Nos.2 and 3, R.Ws.1 and 2 were examined and Exs.B.1 to B.4 were marked.

9. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of offending auto and accordingly, allowed the claim petition in part and awarded an amount of Rs.2,00,000/- with costs and interest at 7.5% p.a. from the date of petition till the date of deposit against respondent Nos.1 and 2 only and dismissed the claim petition against the 3rd respondent/Insurance company. Aggrieved against the exoneration of the Insurance company from the liability of payment of the compensation amount, the appellants/petitioners preferred the present appeal.

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

11. At the time of hearing, learned counsel for the appellants/petitioners has confined his arguments only to the aspect of fixation of liability for payment