The United India Insurance Company Limited vs Beebavva

Dr. B. Siva Sankara Rao, J.—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-Principal District Judge, Medak at Sangareddy, (for short, Tribunal) in M.V.O.P. No. 48 of 1999 dated 06.05.2003, awarding compensation of Rs. 50,000/- (Rupees Fifty thousand only) with interest at 9% per annum as against the claim of the claimant of Rs. 50,000/- in the claim petition under Section 140 of the Motor Vehicle Act, 1988 (for short, the Act).

Heard Sri Somanchi Venkateswarlu, the learned standing counsel for the appellant-insurance company and Sri P. Sriharinath the learned counsel for respondent Nos. 1 to 5. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

The insurer-2nd respondent of the claim petition, among the two respondents including the owner of tractor trailer bearing No. AP 25 T 657 and ATJ 5904 in the claim preferred by the 5 claimants, no other than wife, major sons and major un-married daughter of the deceased of interim no fault liability claim independently, for Rs. 50,000/- granted by the Tribunal as above, impugning the same with the contentions in the grounds of appeal filed that the Tribunal ought to have seen that the deceased persons were unauthorized passengers of the goods vehicle, that the policy is an Act policy and there is no coverage of risk and the insurer cannot be fastened with liability even under no fault liability claim and thereby the insurer is to be exonerated. The other contention is that the driver has no valid driving licence that is even proved by the insurer and the Tribunal went wrong in not appreciating the same.

Whereas, it is the contention of the learned counsel for the respondent Nos. 1 to 5 who are claimants of the O.P. No. 48 of 1999 that the award of the Tribunal holds good, for this Court in so far as the interim compensation under no fault liability concerned from the vehicle involved in the accident, all the aspects cannot be gone into and there is nothing to interfere. The other contention is that the appeal is not maintainable.

Now the points that arise for consideration in the appeal are:

Whether the insurer has to be exonerated and requires interference, if so with what amount and with what observations?

To what result?

POINT-1:

The facts averred regarding the date of accident and manner of accident, as a result of which the deceased sustained injuries and died are proved from the material on record and no way requires interference in the appeal. After considering the material on facts and after hearing both sides the Tribunal awarded an amount of Rs. 50,000/- towards compensation under no fault liability.

The law is fairly settled, if any, from National Insurance Co. Ltd v. Jethu Ram atleast by referring the same in the settled expression of the Apex Court in Yallawwa V. National Insurance Company Ltd. that even in a claim under Section 140 of the M.V. Act, it is not sufficient of mere involvement of the vehicle, but also to show the policy cover the risk and the insurer is liable though negligence and other aspects cannot be pleaded by the claimant nor any defence on that raised by the owner of the vehicle or the insurer and the claim petition since to be filed like a regular claim petition, he filed separately and not sought in the regular claim petition nor filing claim under Section 166 of the M.V. Act, appeal equally maintainable against the order on the application filed under Section 140 of the M.V. Act.

From the above, the appeal is maintainable and the insurer is entitled to take the defence as to the policy covered the risk or not and not mere involvement of the vehicle alone. From the above, coming to the facts, a perusal of the report covered by Ex. A-1 F.I.R. placed reliance by the claimants through their witness P.W.-1 equally by the insurer through R.W.-1 exhibited as Ex. B-1 and also Ex. B-3 charge sheet and the deceased persons among others were unauthorized passengers in the tractor-trailer which is a goods carriage and as per the policy, it is for agricultural purpose and the policy thereby not covered the risk of unauthorized passengers of the tractor and trailer for their traveling with no even permit muchless any additional coverage of risk for deceased is neither driver nor owner of goods even under Section 147(1)(a) and (c) of the M.V. Act for covering under Act policy. However, the fact remains from the very F.I.R. with reference to the charge sheet that the deceased not died while traveling in the vehicle but after the trailer turned turtle for rash and negligent driving of the driver and fallen underneath along with other persons though other persons sustained injuries since they jumped away while turning turtle, but the deceased was succumbed by fallen under the trailer. When such is the case, though the deceased was unauthorized passenger during the course he was traveling by sitting on the trailer, the moment fell down, he is a third party and as he was succumbed to the injuries not because while traveling, but after fall and having been fallen underneath the trailer. Though there is a contribution of the deceased also in traveling on the goods vehicle as unauthorized passenger prior to that but for that the accident could not be occurred; however, once he is a third party by the time he was succumbed to the injuries that were sustained, the policy even Act policy covers the risk of the third parties and the question of contributory negligence and deciding the same does not arise in the no fault interim claim. As such, the insured is liable for the no fault liability amount but for to take all these defences, if anything liable more than that of the contribution of the deceased also vide Yellavva supra and on the scope of the unauthorized passenger, the moment fallen down the deceased became a third party as per the expression in United India Insurance Company Limited v. Kurva Yejju Mallamma.

Now, coming to the other aspects, like the driver having no driving licence, the evidence of R.W.-1 coupled with Ex. B-3 charge sheet and Ex. B-7 M.V.I. report clearly speak there is no driving licence produced and the accused driver of the tractor was charged for non-production and non-possessing of driving licence equally in Column No. 17 of the M.V.I. report speaks so. To say that there is no valid driving licence or driving licence to the driver, for the owner even party did not choose to rebut the evidence muchless by the claimants. However, that will not exonerate the insurer but for to pay by the insurer and then recover from the insured as per National Insurance Company Limited vs. Swaran Singh & Others and S. Iyyappan vs. United India Insurance Company. Thus, the insurer has to pay first and then recover the same from the insured.

Coming to the rate of interest, the Tribunal awarded interest at 9% p.a. From the settled proposition of law in TN Transport Corporation v. Raja Priya, and Rajesh v. Rajbir Singh that while awarding reasonable rate of interest the steep fall in the bank interest rate since past several years has to be kept in mind and awarded therefrom interest at 7.5% p.a. as reasonable. The appellate Court also got the discretionary power under Order LXI Rule 33 C.P.C. to award reasonable rate of interest from the drastic fall in bank rate of interest in bank rate as laid down by the Apex Court in DDA vs. Joginder S. Monga. Thus under Section 171 of the M.V. Act interest is awarded at 7.5% per annum from date of claim petition till realization. Accordingly, Point-1 for consideration is answered.

POINT No. 2:

Accordingly and in the result, while allowing the appeal in part and while modifying the rate of interest from 9% p.a. to 7.5% p.a. from the date of claim petition till the date of realization with joint and several liability of the insurer and insured (respondents 1 and 2) to pay by the insurer and then to recover. The respondents shall deposit said amount within one month, failing which the claimant can execute and recover. It is made clear from the settled expressions of the Apex Court in United India Insurance Co. Ltd. v. Lehru & Oriental Insurance Company Limited vs. Nanjappan & Others that the insurer is entitled, while depositing the amount payable, if not deposited or paid any amount so far to deposit the balance and to approach the Tribunal to direct the RTA concerned not to register any transfer of the crime vehicle and to seek for attachment of the crime vehicle or other property of the insured as an assurance for execution and recovery in the same proceedings or under revenue recovery as per the M.V. Act, 1988 and also ask the Tribunal not to disburse the deposited amount to claimant (but for to invest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amount of the claimant, if there is any necessity to permit for any withdrawal but for to invest the balance in fixed deposit in a nationalized bank. Rest of the terms of the award of the Tribunal holds good. There is no order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall stand closed.