THE HON’BLE SMT. JUSTICE RENUKA YARA

M.A.C.M.A.No.844 of 2023

JUDGMENT:

Heard, Sri G. Raj Kumar, learned standing counsel for the

appellant/respondent No.2/Insurance company and Ms. Amrutha Sanjeeva, learned counsel for respondent Nos.1 to 3/claimants.

Perused the entire record.

2. This is an appeal preferred by the appellant/Insurance company aggrieved by the order passed by the learned Chairman, Motor Accident Claims Tribunal-cum-I Addl. District Judge at Nizamabad (for short ‘the Tribunal’) in M.V.O.P.No.220 of 2021, dated 27.02.2023, wherein, an amount of Rs.26,21,480/- was awarded with interest at 8% per annum to claimant Nos.1 and 2 in a claim petition filed seeking compensation of Rs.25,00,000/-. The appellant/Insurance Company and respondent No.4/owner of the offending vehicle were directed to deposit the said compensation amount jointly and severally. Further, liberty is granted to the Insurance company to recover the same from owner of the offending vehicle through due process of law. The claim against

claimant No.3 was rejected.

3. The brief facts of the case are that claimant Nos.1 and 2 are the parents and claimant No.3 is brother of the deceased. On 22.03.2021, the deceased Deddeda Sivashankar was proceeding on his motorcycle bearing No.TS-16-EC-6072 from Mangalpahad village towards Bodhan. When the deceased reached Yedpally Pedda Bridge, at 6.45 am, one borewell lorry bearing No.AP-28-BS- 467 driven in rash and negligent manner at high speed came to the wrong side, lost control and dashed the motorcycle of deceased, causing multiple fractures to the skull, right shoulder, lefthand and other multiple injuries all over the body causing his death on the spot. Consequently, the claimants have filed the claim petition seeking compensation of Rs.25,00,000/-.

4. The claim petition was opposed by the Insurance Company denying the age, avocation, income, dependency of the claimants and liability of Insurance Company to pay compensation. Questioning the liability, the Insurance Company pointed that the deceased was not wearing helmet at the relevant time of accident and therefore, there is contributory negligence. The police filed charge sheet under Section 181 of M.V.Act against respondent No.4/owner of the offending vehicle due to driving license violation. Since there is violation of terms and conditions of the policy, the Insurance Company denied liability to pay compensation.

5. The claimants got examined PWs 1 to 4 and exhibited Exs.A1 to A16. The appellant/Insurance Company got examined RW1 and exhibited Exs.B1 to B5.

6. Upon examining the oral and documentary evidence adduced by both the parties, the Tribunal awarded compensation of Rs.26,21,480/- with interest at 8% per annum which is to be paid by the Insurance Company at first instance to be recovered from respondent No.4/owner of the offending vehicle. Aggrieved by the same, the present appeal is preferred.

7. In grounds of appeal, it is pleaded that the Tribunal failed to consider the charge sheet and its contents wherein the investigation revealed that the deceased fell under the rear tyres of the lorry while overtaking the vehicle in front of him and therefore, the Insurance Company ought to have been exonerated. The driver and insurer of the lorry are proper and necessary parties, the driver was not holding valid driving license and therefore, the order passed by the Tribunal is liable to be set aside. The MVI report discloses that there were no damages to the lorry i.e. there was no direct collision between the motorcycle and the lorry and therefore, no liability can be fastened on the Insurance company. The appellant/Insurance company referred to the judgment of the Hon’ble Supreme Court of India in Premkumari and others v. Prahalad Dev and others, (2008) 3 SCC 193, wherein, it is held that when there is willful breach of the terms of policy, the Insurance company is exonerated from liability and the liability is fixed only on the owner of the vehicle. Further, re