MACMA/2904/2015 of The Reliance General Insurance Company Limited Vs Tipurluri Karthik Venkat Reddy, on 31 December 2015

ORDER:

The 2[nd] respondent among two respondentsincluding owner and insurer of T.V.S. bike engineNo.AF.JN.61742539 undisputedly covered by policy, inthe claim filed by the injured under Section 163-A of theMotor Vehicles Act (for short ‘the Act’) for Rs.2,00,000/-in O.P.No.1049 of 2007 vide award dated 19.03.2009fixed compensation of Rs.64,000/- with 20% permanentdisability sustained by the injured with interest at 7.5%pa. by fixing joint liability, despite the bike is with fourriding including the rider and the three pillion riders filedthe appeal with contentions in the grounds of appeal thatthe tribunal gravely erred in fixing liability instead ofexonerating the insurer despite driver has no validdriving license apart from compensation fixed isexcessive and in the course of oral hearing the learnedcounsel for the insurer/appellant submits that the fourriding itself contributed to the accident and the injuredalso thereby party to the contribution and proportionatecontribution to be fixed to deduct.

2. The said un-numbered appeal is filed with a delay of 138 days and the reason assigned in theapplication for condonation of delay is administrativedelay in giving opinion and forwarding papers andaccording sanction to file.

3. Whereas, it is the contention of the learnedcounsel for the 1[st] respondent that the appeal against2[nd] respondent even dismissed for default sinceremained exparte before the tribunal, no way fatal to themaintainability of the appeal vide Meka Chakra Rao vs Yelubandi Babu Rao @ Reddemma[[1]]and the sameis recorded; and further contends that there is noexplanation for the delay to condone and there are nomerits to interfere with the award of the tribunal, hence todismiss the appeal as well as delay condonationapplication.

4. Heard and perused the material on record. Thereasons assigned for the delay justifies within thepragmatic approach, delay is condoned.

5. The appeal is taken up for hearing at request ofboth the parties.

6. The evidence of RW.1, Police Officer coupledwith Exs.X1 and X2 and Ex.A2, charge sheet clearlyspeaks from the investigation of the case, the driver of the bike of 1[st] respondent had no valid license at all and the CaseDiary clearly discloses the same apart from the samethe charge sheet also charged for the offence underSection 181 of the Act for not possessing license andeven the Motor Vehicles Inspector’s report not filed bythe claimants to say there is any license muchlessproduced to say there from driver had no valid drivinglicense to ride the bike. Once such is the case theinsurer cannot be fixed with joint liability but for to payand recover from the settled expressions in Insurance Company Limited v. Swaran Singh[[2]],Kusum Lata v.Satbir[[3]]and S.Iyyappan v. United India InsuranceCompany[[4]],thereby the tribunal has no right in fixingjoint liability.

7. Coming to the contentions of quantum ofcompensation as utterly low and four riding contributedto the accident and contribution of the injured to bededucted, even tribunal taken 20% disability what thecompensation awarded of Rs.64,000/- even by fixingany 25% contribution on the part of the injured, theclaimant is entitled to more than what Rs.64,000/-awarded by the tribunal. Hence, there is nothing tointerfere with the quantum.

8. Having regard to the above, the finding of thetribunal of joint liability requires to be modified to theextent of liability of pay and recovery.

9. Accordingly and in the result, while allowing theappeal in part with joint and several liability of the insurerand insured, to pay by the insurer to the claimant andthen to recover from the insured. The insurer shalldeposit said amount within one month from the date ofreceipt of a copy of this order, failing which the claimantcan execute and recover. It is made clear from thesettled expressions of the Apex Court in United India Insurance Co. Ltd. V. Lehru[[5]]and Oriental Insurance

Conclusion

Company Limited Vs. Nanjappan & Others[[6]]that theinsurer is entitled, while depositing the amounts payable,if not deposited or paid any amounts so far to depositthe balance amount to approach the Tribunal to directthe RTA concerned not to register any transfer of thecrime vehicle and to seek for attachment of the crimevehicle or other property of the insured as an assurancefor execution and recovery in the same proceedings orunder revenue recovery as per the Motor Vehicles Act,1988 and also ask the Tribunal not to disburse thedeposited amount of the respective claimants (but for toinvest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amounts of the claimants, if there is any necessity topermit for any withdrawals but for to invest the respectivebalance amounts separately in fixed deposits in anationalized bank. Rest of the terms of the award of theTribunal holds good. There is no order as to costs.

10. Miscellaneous petitions, if any pending, shallstand closed.

_________________________

Dr. B. SIVA SANKARA RAO, J

Date:31-12-2015pab

[1](2001 (1) ALT 495)(2001 (1) ALT 495)

[2](2004) 3 SCC 297=2004-ACJ-1(2004) 3 SCC 297=2004-ACJ-1

[3]AIR 2011 SC 1234

[4](2013) 7 SCC 62(2013) 7 SCC 62

[5]JT-2003(2) SC 595 = 2003 ACJ 611JT-2003(2) SC 595 = 2003 ACJ 611

[6]

(2004) 13 SCC 224=2004-SAR(civil)-290