MACMA/2907/2015 of Begari Sangaiah Vs Mohd. Safi on 31 December 2015

JUDGMENT:

The claimants 1 to 3 (husband and sons of the deceasedNagamma) of O.P.No.184 of 2009 on the file of the learned Chairmanof the Motor Accidents Claims Tribunal–cum–Prl.District Judge, Medakat Sangareddy(for short, ‘Tribunal’) maintained claim under Section166 of the Motor Vehicle Act,1988 (for short, ‘the Act’), forRs.3,00,000/- for the death of Begari Nagamma in accident on04.04.2009 while travelling in the auto bearing No.AP23 W 4640belongs to the 1[st] respondent insured with the 2[nd] respondent coveredby Ex.B.2 policy caused by its driver by driving in rash and negligentmanner for the tribunal granting of Rs.2,25,044/-, preferred the appealwith contentions in the grounds of appeal that the quantum awarded ofthe tribunal is utterly low, that the tribunal should have seen that itmakes no difference of the auto driver possessed LMV non-transport ortransport and the exoneration of the Insurer of the tribunal isunsustainable, hence to fix joint liability against the Insurer also andgrant compensation as prayed for.

2. Along with the unnumbered appeal, the appellants/claimantsalso filed a petition vide MACMAMP No.1943 of 2011 to condone thedelay of 102 days in filing the appeal offering explanation for the delayas financial difficulties and the same is allowed directing the registry tonumber the appeal if otherwise in order and the appeal at request istaken up for hearing.

3. Heard the learned counsel for the appellants and also thelearned counsel for the 2[nd] respondent/Insurer, from the 1[st]respondent-owner of the crime vehicle though contested before thetribunal impleaded in the appeal dismissed for default vide ordersdated 12.03.2015, who contended that the tribunal is right inexonerating the insurer and there is nothing to interfere with the said finding for this Court while sitting in appeal.

4. A perusal of the record, there is no dispute about the quantum.Now the issue involved is whether the exoneration of the Insurer fromliability or to pay and recover in saying the driver of the autopossessing driving licence of LMV Non-transport in driving LMVtransport. But the law is well settled by the Apex Court in three judgeBench in National Insurance Company Limited Vs. SwaranSingh[[1]]that once the policy covers risk, the insurer is liable to theextent to pay first and then to recover from the owner instead of totalexoneration and also as per the subsequent expressions of the ApexCourt inKusumlatha V. Satbir[[2]]and S.Iyyappan Vs. United IndiaInsurance Company[[3]].

5. In the result, while confirming the quantum of compensation, theappeal is allowed in part by modifying the total exoneration of the 2[nd]respondent-Insurer to pay first and then recover from the 1[st]respondent directing both the respondents to deposit said amountwithin one month from today, failing which the claimants can executeand recover. It is made clear that the insurer is entitled whiledepositing the amount payable, if not deposited or paid any amount sofar, to deposit and to approach the Tribunal to direct the RTAconcerned not to register any transfer of the crime vehicle and to seekfor attachment of the crime vehicle or other property of the insured asan assurance for execution and recovery in the same proceedings orunder revenue recovery as per the MV Act, 1988 and also ask theTribunal not to disburse the deposited amount to claimants (but for toinvest in a bank) till such attachment order is made. However, after thesame, the Tribunal shall not withhold the amount of the claimants, ifthere is any necessity to permit for any withdrawal but for to invest thebalance in fixed deposit in a nationalized bank. Rest of the terms of theaward of the Tribunal holds good. There is no order as to costs.

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

________________________

Dr. B. SIVA SANKARA RAO, J

Date: 31.12.2015Vvr

[1](2004) 3 SCC 297=2004-ACJ-1[2]AIR 2011 SC 1234 = 2011 (2) SCJ 639[3](2013) 7 SCC 62