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IN THE COURT OF THE JUDGE; IV ADDL.MOTOR ACCIDENTS CLAIMS

TRIBUNAL :NELLORE AT SRI POTTI SRIRAMULU NELLORE DISTRICT

Present: CH.RAMACHANDRA MURTHY,

Chairman, of IV Addl. Motor Accidents Claims Tribunal,
Nellore

Tuesday, this the 18th day of April 2017

M.V.O.P.No.548 of 2013
Between:
1. Shaik Kalesha
son of Sulthan Mohiddin, Muslim, aged about
33 years, resident of Door number 26/2/2625,
Mahatma Gandhi Nagar, Nellore.

….. Claimant
And:-
1. Ragavarapu Amarendra,
son of Pullaiah, Hindu, aged not known, Owner
of the Tata A/c bearing No.AP 26 TA 1865,
residing at Cherlopalli village, Manubolu
Mandal, SPSR Nellore District.
2. The Oriental Insurance Company Limited,
represented by its Manager, having their
branch office at Dargamitta, Nellore, policy
No.462990/31/2013/2120 valid from 9.2.2013 to
8.2.2014.
….......... Respondents
M.V.O.P.No.549/2013
Between:
1. Koduru Vasudeva,
son of late Saibaba, Hindu, aged about 35
years, 11th street, K-Block, Pragati Nagar,
Podalakur Road, Nellore
2. Tupili Kamakshi (daughter of late Saibaba),
wife of Bala Venkateswarlu, Hindu, aged about
36 years, both are residing at 11th street, A-
Block, Pragathi Nagar, Podalakur Road, Nellore

….. Claimants
And:-
1. Ragavarapu Amarendra,
son of Pullaiah, Hindu, aged not known, Owner
of the Tata A/c bearing No.AP 26 TA 1865,
residing at Cherlopalli village, Manubolu
Mandal, SPSR Nellore District.
2. The Oriental Insurance Company Limited,
represented by its Manager, having their
branch office at Dargamitta, Nellore, policy
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No.462990/31/2013/2120 valid from 9.2.2013 to
8.2.2014.
….......... Respondents

These petitions are coming before me on 13.4.2017 for final hearing before
me in the presence of Sri Y.Ramesh advocate for the petitioner, Sri B.Sreenivasa
Rangarajan advocate for first respondent and of Sri. N.Kodanda Rami Reddy advocate
for second respondent and upon perusing the material papers on record and upon
hearing both sides, this Court made the following:

COMMONORDER

1. The claimant/Sk.Kalesha filed claim application in M.V.O.P.No.548/2013 who

was aged 33 years at the time of accident and earning Rs.500/- per day as auto driver,

filed claim application under Section 166 of Motor Vehicles Act, claiming

compensation of Rs.1,00,000/-.

2. The claimants/Koduru Vasudeva and Tupili Kamakshi, who are legal heirs of

deceased late Saibaba filed claim application in M.V.O.P.No.549/2013 under Section

166 of Motor Vehicles Act, claiming compensation of Rs.3,60,000/-.

with the following averments:-

(I) On 17.7.2013 at about 12-00 noon Koduru Saibaba and claimant Kalesha (in

M.V.O.P.No.548/2013) were proceeding in Auto bearing No.AP 26 X 7527 with a load

of tyres from Priyadarshin College of Engineering and Technology and proceeding

towards Kanuparthipadu Centre to attend the puncture of the bus . The claimant

Kalesha drove the Auto. At about 1-00 P.M., when the Auto reached near Sundaraiah

Colony on NH-5, Nellore , meanwhile, the driver of the TATA AC bearing No.AP 26 TA

1865 was driven in a rash and negligent manner, in high speed and dashed the back

side of the Auto and caused the accident. Resulting the Auto turned turtle and

inmates of the Auto fell down and received injuries. Koduru Sai Babu (connected

with M.V.O.P.No.549/2013) received head injury and died. The claimant Kalesha
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sustained injuries. They were shifted to Narayana General Hospital, for treatment.

Where the injured Kalesha got treatment by spending Rs.15,000/- towards medical

expenses.

(ii) A case was registered in crime No.318/2013 of V Town Police Station under

Section 304-A and 338 IPC . Therefore, The respondents are jointly and severally liable

to pay compensation claimed by the claimant. Hence, the claim.

3. The first respondent who is registered owner of the TATA A/c bearing No.AP 26

TA 1865 filed his counter by resisting the claim and further contends that the accident

had occurred due to rash and negligent driving of the driver of the Auto and that the

driver of the offending vehicle was not negligent in causing the accident. The

offending vehicle was validly insured with second respondent. The driver of the

offending vehicle possessed valid driving licence. The claim is excessive. Therefore,

first respondent requests to dismiss the claim application with costs. .

4. Second respondent/insurance company resisted the claim by filing counters in

O.P.No.548 and 549 of 2013 contending that the driver of the offending vehicle was

not negligent and that the driver of the Auto was negligent in causing the accident.

Two vehicles are involved in the accident. The insurer and insured of Auto are proper

and necessary parties to the proceedings. The offending vehicle is not validly insured

with the second respondent. The drivers of both vehicles did not possess valid driving

licence. The claim is excessive. Therefore, they requests to dismiss the claim

application.

5. Basing on the above pleadings, the following issues have been framed in

O.P.No.548 /2013 and 549 of 2013 and the same are re-casted as follows:-

1. :- Whether the pleaded accident occurred on

account of the rash and negligent driving of the
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driver of TATA AC Van bearing No.AP 26 TA
1865 by its driver and whether it resulted injuries
to the claimant and deceased?
2. :- Whether the driver of the TATA AC van bearing
No.AP 26 TA 1865 did not possess valid and
effective driving licence as on the material date
of accident?
3. :- Whether the claimant is entitled for
compensation, if so to what amount and from
whom ?
4. :- Whether the owner and insurer of Auto bearing
No.AP 26 X 7527 are proper and necessary
parties to the proceedings and non-joinder
thereto is fatal to this petition (only framed in
O.P.No.548/2013)
5. :- To what relief?

6. On joint memo the claim application in M.V.O.P.No.548 of 2013 is

clubbed with M.V.O.P.No.549/2013. Evidence is recorded in

M.V.O.P.No.549/2013 and treated as evidence in M.V.O.P.No.548 of

2013.

7. On behalf of the claimants, PW-1 to PW-3 were examined and Exs.A-1 to A-10
documents were marked and Ex.X-1 to Ex.X-13 were marked.

WITNESSES EXAMINED ON BEHALF OF CLAIMANTS

PW-1 :- Koduru Vasudeva who is first claimant in
M.V.O.P.No.549/2013
Pw-2 :- Sk.Kalesha, who is claimant in M.V.O.P.No.548/2013
PW-3 :- P.Ramachandraiah, who is working as clerk in
Priyadarshini Engineering College.
DOCUMENTS MARKED ON BEHALF OF CLAIMANTS
Ex.A-1 :- Certified copy of First information report in crime
No.380/2013 of V Town Police Station
Ex.A-2 :- Certified copy of inquest report of Koduru Saibaba
Ex.A-3 :- Certified copy of postmortem certificate of deceased
Saibaba
Ex.A-4 :- Certified copy of charge sheet
Ex.A-5 :- Salary certificate issued by Principal, Priyadharshini
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College of Engineering and Technology, Nellore
Ex.A-6 :- Discharge summary issued by Narayana General hospital,
Nellore in the name of Sk.Kalesha
Ex.A-7 :- Certified copy of wound certificate of PW-2
Ex.A-8 :- Bunch of Medical Bills (Sixteen in number) issued by
Narayana Hospital, Nellore for Rs.10,648.37ps
Ex.A-9 :- Bunch of Medical Prescriptions (six in number) issued by
Narayana Hospital, Nellore
Ex.A-10 :- One positive photo along with compact disc
MARKED DOCUMENTS THROUGH THE EVIDENCE OF PW-3
Ex.X-1 :- Authorization letter 3.9.2016 issued by Principal of
Priyadarshini Engineering & Technology authorizing PW-3
to depose evidence.
Ex.X-2 :- Service Certificate of deceased K.Saibabu issued by
Principal of Priyadarshini Engineering & Technology
Ex.X-3 :- Salary Certificates of deceased K.Saibaba from April 2013
to Ex.X- to July 2013
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Ex.X-7 :- Copies of attendance registers of our college from 2008 to
to Ex.X- 2013 respectively
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Ex.X-13 :- Xerox copy of driving licence stands in the name of
deceased Saibabu (original produced, compared with
original and found correct)

8. On behalf of second respondent, RW-1 and RW-2 were examined and Ex.B-1

and Ex.X-14 and Ex.X-15 were marked.

WITNESSES EXAMINED ON BEHALF OF SECOND RESPONDENT

RW-1 :- V.Sreenivasa Rao, who is working as Junior Assistant in
Regional Transport Office, Nellore
Rw-2 :- M.Subrahmanyam, who is working as Administrative
Officer in second respondent insurance company
DOCUMENTS MARKED ON BEHALF OF SECOND RESPONDENT
Ex.B-1 :- Policy No.462990/31/2013/2120 valid from
9.2.2013 to 8.2.2014.
Ex.X-14 Authorization letter dated 16.3.2017 authorizing
RW-1 to depose evidence
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Ex.X-15 :- Driving licence particulars of N.Vinod Kumar, son of
Seenaiah

9. Heard both sides and perused relevant records.

Issue No.1 and 4 in M.V.O.P.No.548 and 549 of 2013

1. :- Whether the pleaded accident occurred on

account of the rash and negligent driving of the
driver of TATA AC Van bearing No.AP 26 TA
1865 by its driver and whether it resulted injuries
to the claimant and deceased?

4. :- Whether the owner and insurer of Auto bearing

No.AP 26 X 7527 are proper and necessary
parties to the proceedings and non-joinder
thereto is fatal to this petition (only framed in
O.P.No.548/2013)
They are interrelated and I deal with them together.

10. It is not in dispute that first respondent is the owner of the offending TATA AC

bearing No.AP 26 TA 1865. It is evident from Ex.B-1 insurance policy, Ex.A-1 first

information report and Ex.A-4 charge sheet . It is not in dispute that claimant in

M.V.O.P.No.548/2013 and deceased Koduru Saibaba met with accident and received

injuries on 17.7.2013 at about 13-00 hours near Sundaraiah Colony, on NH-5, Nellore.

It is evident from Ex.A-1 first information report and Ex.A-4 charge sheet. As per

charge sheet one Muppavaram Vinod Kumar, son of Seenaiah drove the offending Van

as on the material date of accident. PW-2 was cited as witnesses as LW-1 in Ex.A-4

charge sheet.

11. Learned advocate for the claimants argued that the accident took place due to

the rash and negligent driving of the driver of TATA AC bearing No.AP 26 TA 1865. . On
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the other hand, the learned advocate for the respondents argued that the accident

had occurred due to negligence of the driver of the Auto i.e., claimant in

M.V.O.P.No.548/2013 in which deceased Saibaba were travelling and that the petition

is not maintainable since insurer and insured of Auto are not impleaded as parties to

the proceedings First respondent, who is the owner of the offending Van did not

adduce any evidence though he contested the proceedings. Admittedly, the

respondents are not eye witnesses to the accident. Insurance company did not adduce

any evidence of its own regarding the manner of accident. To speak about the

accident, the second respondent did not choose to examine any witness except filing

petition under Section 170 of Motor Vehicles Act. Rw-2 is Administrative Officer, he is

not an eyewitness to the accident. His evidence is no way helpful to the second

respondent to prove the manner of accident.

12. On the other hand, PW-1 and PW-2 who are claimants categorically deposed in

their evidence that the driver of the Van was negligent at the time of accident. They

denied a suggestion that driver of Auto was negligent in driving his Auto and that the

accident took place as the Auto driver suddenly applied brakes and that Van driver

was not negligent and that insurer and insured are proper and necessary parties to the

petition. Nothing has been elicited from their cross-examination against the driver of

the Auto. As stated above, RW-2 is not an eyewitness to the accident. RW-2 denied a

suggestion that Van driver was negligent at the time of accident .

13. On the other hand, as per Ex.A-4 charge sheet , it is clear that the investigation

officer, after completion of investigation filed charge sheet alleging that the driver of

the Van drove his Van in a rash and negligent manner and dashed against the Auto in

which claimant and deceased were proceeding. From the evidence of PW-1 and PW-2
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coupled with the contents of Exs.A-1 first information report and Ex.A-4 charge sheet,

it is clear that the driver of the Van drove the Van in a rash and negligent manner and

caused the accident. In the absence of any contrary evidence on behalf of second

respondent, it can safely be held that the accident occurred due to rash and negligent

driving of the driver of the Van and claimant and deceased Saibaba sustained injuries

and Saibaba died while the Motor vehicle was in use.

14. As per Ex.B-1 insurance policy, Policy No.462990/31/2013/2120

valid from 9.2.2013 to 8.2.2014. The accident took place on 17.7.2013, the

policy was in force as on the material date of accident. Hence, I answered the

issue against the respondents and in favour of the claimant.

15. Issue No.3 in O.P.No.548/2013:-

3. :- Whether the claimant is entitled for

compensation, if so to what amount and from
whom ?

As per Ex.A-7 wound certificate, PW-2/Kalesha sustained the following

injuries:-

1. :- Pain and tenderness on the left shoulder

As per radiologist finding, there was fracture of left clavicle, which is

grievous in nature.

16. In order to prove the injuries received by PW-2, the claimant did not choose

to examine the medical officer. Taking into consideration of injuries referred in

Ex.A-7 wound certificate and evidence of PW-2, I hereby award Rs.30,000/-

towards pain and suffering .

17. As per evidence of PW-2, he is a Auto driver and earning Rs.500/- per day.

He did not produce any evidence regarding monthly income. In the absence of any

such evidence, I hereby fix monthly income at Rs.4,000/-. Taking into consideration

of injuries received by PW-2, I hereby award Rs.8,000 /- (Rs.4,000 X2) towards

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loss of earnings for a period of two months. Rs.1,000/- is awarded towards

transport charges. The claimant did not choose to examine the medical officer

top rove that he sustained any permanent disability. In the absence of any medical

evidence, the claimant is not entitled to compensation under the head of

permanent disability.

18. PW-2 got marked Ex.A-6/Discharge summary and Ex.A-9 bunch of

prescriptions issued by Narayana Hospital Nellore. He also marked bunch of

medical bills in Ex.A-8 issued by Narayana General Hospital, Nellore. As per Ex.A-8

bills, the claimant incurred Rs.10,648.37ps towards medical expenses. Nothing

has been elicited from the cross-examination of PW-2 disproving the bills covered

in Ex.A-8. In the circumstances of the case, I hereby award Rs.10,648/- (rounded

off) towards medical expenses incurred by PW-2. The rest of the claim is hereby

rejected.

The compensation awarded to the petitioner is as follows:-

S.No. Nature of Amount awarded

compensation
1. Pain and suffering Rs.30,000-00
2. Loss of earnings 8,000-00
3. Transport charges 1,000-00
4. Medical Expenses 10,648-00
Total Rs. 49,648-00
(Rupees forty nine thousands six hundred forty eight
rupees only)

Accordingly, this issue is answered.

19. Issue No.3 in O.P.No.549/2013:-

3. :- Whether the claimant is entitled for

compensation, if so to what amount and from
whom ?

In a decision reported in 2016 (2) ALT 306 (FB), Dr.Gangaraju Sowmini Vs.

Alwala Sudhakar Reddy and another, wherein the legal heirs of deceased, who is

sister filed claim application. In that connection after referring to the decision of
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Apex Court in Montford brothers of ST.Gabriel and another Vs. United India

Insurance and another (2014 (4) SCJ 407), it was held that

The claim application can be made either by the injured or the

legal representatives of the deceased, who are non-
dependents can also lay a claim for payment of compensation
under Section 166 of Motor Vehicles Act.

In view of the decision referred to above, the legal representatives of the

deceased can maintain an application and claim for compensation.

20. It is not in dispute that as per Exs.A-1 to Ex.A-4, connected crime records,

Koduru Saibaba died met with accident and died on 17.7.2013 near Sundaraiah

Colony, on NH-5 road, Nellore. The petitioners did not file any proof to show the

age of the deceased. As per Ex.A-2 to Ex.A-4 connected crime records, the

deceased died at the age of 68 years. PW-3 produced driving licence particulars

of deceased Saibaba, which is marked as Ex.X-13. There is no denial by the

respondents about the contents of Ex.X-13. As per Ex.X-13, deceased was born on

2.1.1952. Taking into consideration of date of birth in Ex.X-13, the deceased Sai

Baba died at the age of 62. Therefore, I hold that the deceased died at the age

of 62 years.

21. As per evidence of PW-1, his father Saibaba was working as driver in

Priyadarshini College of Engineering and Technology and earning Rs.6,900/- per

month. Through his evidence Ex.A-5 certificate issued by college authorities is

marked. The said certificate also, the monthly salary of the deceased mentioned

as Rs.6,900/-. He denied a suggestion that his father was dependent on him.

22. The claimants also examined PW-3, who is working as clerk in Priyadarshini

Engineering College. He deposed that deceased Saibaba worked as driver in their

institution from 2007 to till his death. As per Ex.X-1, PW-3 is authorized to depose

evidence on behalf of the college. He produced salary certificates of deceased

and marked as Ex.X-3 to Ex.X-6. He also produced attendance register of their

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college running from 2008 to 2013. The copies are marked as Ex.X-7 to Ex.X-12

(originals produced, compared with originals and found correct). He also produced

driving licence particulars of the deceased, which is marked as Ex.X-13. PW-3

denied a suggestion that the salary certificate produced by me is not genuine one.

He admitted that deceased Sai Baba was getting net salary of Rs.6,150/- .

Nothing has been elicited from the cross-examination of PW-3 to disprove his

evidence. As per evidence of PW-3 coupled with the documents produced by me it

can safely be held that deceased Saibaba worked as driver in Priyadarshini

Engineering College and earning Rs.6,155/- during the month of April 2013 (As

per Ex.X-3). As per Ex.X-2, deceased was drawing monthly salary of Rs.6,900/-.

As per Ex.X-3, an amount of Rs.80/- is deducted towards professional tax. After

deducting Rs.80/- from gross salary of Rs.6,900/-, the net salary comes to

Rs.6,820/-. Therefore, I fix the monthly salary of deceased at Rs.6,820/- during

the month of July 2013.

23. The annual income of the deceased comes to Rs. 81,840/-. Admittedly, the

claimants are not dependents on the income of the deceased. The petitioners

are majors. As per Sarla Verma's case reported in 2009 ACJ 1298, ½ of the

amount is to be deducted towards personal and living expenses of the deceased.

After deducting Rs.40,920/- (Rs.81,840 X 1/2 = 40,920) towards personal

expenses of the deceased, an amount of Rs.40,920/- comes towards family

contribution.

24. The appropriate multiplier for the age group of 61 to 65 is 7. The

total dependency comes to Rs.2,86,440/- (Rs.40,920 X 7). Rs.2,000/- is

awarded towards transport charges, Rs.2,000/- is awarded towards funeral

expenses. Rest of the claim is hereby rejected. The compensation awarded to

the petitioners is as follows:-

S.No. Nature of Amount awarded

compensation
1. Loss of Dependency Rs.2,86,440-00
2. Transport charges Rs.2,000-00
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3. Funeral expenses Rs.2,000-00
Total Rs.2,90,440-00
Rupees two lakhs ninety thousands four hundred forty
rupees only

Accordingly, this issue is answered.

25. The learned advocate for the petitioners argued that second respondent is

liable to pay compensation and they can recover the same from the owner of the

vehicle.

26. Learned advocate for the 2nd respondent argued that the driver of the

offending vehicle did not possess valid driving licence to drive offending Van as

on the material date of accident. In order to prove the same, they examined RW-

1, who is working as Junior Assistant in Regional Transport Office, Nellore. He is

authorized to depose evidence as per Ex.X-14. He further deposed that as per

Ex.X-15 driving licence particulars of the driver of the offending vehicle, the

driver possessed Light Motor Vehicle non-transport driving licence as on the

material date of accident. He denied a suggestion that the driver of the

offending vehicle possessed valid driving licence. Nothing has been elicited from

his cross-examination to disprove the same. Taking into consideration of evidence

of RW-1, it can safely be held that the driver of the offending vehicle did not

possess valid driving licence as on the material date of accident and thereby

violated the terms of the policy

27. Now the question is whether the second respondent is liable to pay

compensation inspite of breach of the terms of the policy. Before proceeding

further, it would be appropriate to refer precedents of Honourable Apex Court

regarding possession of valid driving licence.

VALID DRIVING LICNECE

In Insurance Company Limited

Vs.,
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Vidyadar Mahariwal and others
(AIR 2009 (SC) 209)

The three judge of the bench Apex Court by referring to

National Insurance Company Limited Vs., Swaran Singh and
others (2004 ACJ 1), apart from other expressions in National
Insurance Company Limited., Vs., Kusuma Roy and others
(2006) 4 SCC 250) and Oriential Insurance Company Limited
Vs., Nanjappan (2004) 13 SCC 224 and Eswara Chandra and
others Vs., Oriental Insurance Company Limited and others
(2007) 10 SCC 650 held that

“Insurer is not liable to indemnify the owner when the driver has
no licence to drive the crime vehicle.”

In Eswara Chandra and others Vs., Oriental Insurance

Company Limited and others it was held that
“the driver had no valid licence as on the date of accident, as the
driver failed to renew his licence, which was expired thirty days
prior to date date of accident.”

In Kusuma Roy's case it was held that the driver did not posses
valid commercial licence from the date of accident as the vehicle
was used as Taxi (Commercial).
In UIIC Vs., Gianchand, (1997) 7 SCC 556 , it was observed that
“the owner of the vehicle cannot contend no liability to verify
the fact as to the whether driver possessed a valid licence or
not”.

In Surina Durvasudu Vs., Bhavaranayamurthy (2008 ACJ 654)

in para 14 it was observed that “the driver had no driving licence
to drive Tractor and the charge sheet also mentions penal
provisions for violation of the same to drive with no licene and
nothing deposed by the owner despite contention of insurance
company that he has taken all necessary pre-cautions to entrust
the vehicle to a person who had valid driving licence, the
insurance company not made liable holds good”.

In National Insurance Company Ltd., Vs., Lakshmi Narain Dhut

(2007 ACJ 721) after referring Swaran Singh case and New
India Insurance Company Limited Vs., Kamala (2001 ACJ 843),
it was observed that mere renewal of a fake licence, cannot cure
the inherent defect as renewal cannot transform a fake licence
as genuine as held in Kamalal's case.

In Oriental Insurance Company Limited Vs., Prithvi Raj (2008

(1) Scale 727), it was observed that a renewal cannot take away
the effect of fake licence to make the insurer liable and insurer
cannot thereby be liable with a compensation.
In NIC Vs., Geetabhat (2008 ACJ 1498) “after referring to
several decisions that when insurer seeks to avoid liability on the
ground of fake or no licence of driver of the vehicle of the
insurer, but for saying no licence issued by R.T.O., in the name of
driver even taken alleged licence as fake insurer has to pay to
the third party claimants and recover from insured.”
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In New India Assurance Company Limited Vs., Tirupal Vs.,

G.Sampoorna and others (2010 5 ALT 105), wherein the
Tribunal held that “even in the absence of driving licence the
insurance company has to pay and recover rather than escaping
from the liability for the claimant are not parties to the contract
of insurance of vehicle between insurer and insured. \

In a Catina of judgments, the Hon'ble Apex Court had dealt with

the liability of the insurance company while interpreting Section
149 (2) (a) and (ii) and the proviso appended to sub Section (4)
and sub Section (5) of the Motor Vehicles Act, 1988.

In the celebrated case of National Insurance Company Ltd.,

Vs., Swaran Singh (2004 ACJ 1 (SC), three judges of the
Hon'ble Apex Court have dealt in detail with the licence and
had settled the principles in cases where -

(a) :- When the person has been granted

licence for one type of vehicle, but at the
relevant time he was driving another
type of vehicle;
(b) :- Where the driver's licence is found to be
fake;
(c) :- Where the person is in position of a
learner's licence;

And has concluded with the following of summary of findings:-

“102. The summary of our findings to the various issues as
raised in the petitions is as follows:-
(i) :- Chapter XI of the Motor Vehicles Act,
1988 providing compulsory insurance of
vehicle against the third party risks is a
social welfare legislation to extend relief
by compensation to victim of accidents
caused by use of Motor Cycles. The
provisions of compulsory insurance
coverage of all vehicles are with this
paramount object and the provisions of
the Act have to be so interpreted as to
effectuate the said object;
(ii) :- insurer is entitled to raise a defence in
the claim petition filed under Section
163-A or 166 f the Motor Vehicles Act
1988, inter-alia, in terms of Section 149
(2) (a) (ii) of the said Act;
(iii) :- the breach of policy conditions e.g.,
disqualification of driver or invalid driving
licence of the driver as contained in sub
section (2) (a) (ii) of Section 149, as to be
 15
proved to have been committed by the
insurer by avoiding liability by insurer.
Mere absence, fake or invalid driving
licence or disqualification of the drier for
driving at the relevant time, or not in
themselves defences available to the
insurer against either the insured or the
third parties. To avoid its liability towards
insured, the insurer has to prove that the
insured was guilty of negligence and
failed to exercise reasonable care in the
matter of fulfilling the condition of the
policy regarding the use of vehicles by
duly licenced driver or one who was not
disqualified to drive at the relevant time.
(iv) :- The insurance company, however with a
view to avoid liability must not only
establish 'breach' on the part of the
owner of the vehicle; the burden of proof
where for would be on them.

(v) :- The Court cannot laid-down any criteria

as to how said burden would be
discharged in as much as same would
depend upon the facts and circumstances
of each case.
(vi) :- Even where the insurer is able to prove
breach on the part of the insured
concerning the policy conditions
regarding holding of a valid driving
licence by the driver or his qualification
to drive during the relevant time the
insurer would not be allowed to avoid its
liability towards insured unless the said
breach or breaches on the condition of
driving licence is /are so fundamental as
are found to have contributed to the
cause of accident. The Tribunal in
interpreting the policy conditions would
apply “the rule of main purpose” and the
concept of “fundamental breach” to
allow the defences available to the
insurer under Section 149 (2) of the Act.
(vii) :- The question is to whether the owner has
taken reasonable care to find out as to
whether the driving licence produced by
the driver (a fake one or otherwise)
fulfills the requirements of law or not will
have to be determined in each case.
(viii) :- If a vehicle at the time of accident was
driven by a person having a learner's
licence, the insurance companies would
be liable to satisfy the decree.
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(xi) :- The Claims Tribunal constituted under
Section 165 rad with section 168 is
empowered to adjudicate all claims in
respect of the accidents involving death
of bodily injury or damage to property of
third party arising for use of motor
vehicles. The said power of the Tribunal is
not restricted to decide the claims, inter
se, between claimant or claimants on one
said and insured, insurer and driver on
the other. In the course of adjudicating
the claim for compensation and to decide
the availability of defence or defences to
the insurer, the Tribunal has necessarily
the power and jurisdiction to decide
disputes, inter se, between insurer and
the insured. The decision rendered the
claims and disputes inter se, between the
insurer and insured in the course of
adjudication of claim for compensation
by the claimants and the award made
thereon is enforceable and executable in
the same manner as provided in Section
174 of the Act for enforcement and
execution of the award in favour of the
claimants.
(x) :- Whereon adjudication of the claim under
the Act the Tribunal arrives at a
conclusion that the insurer has
satisfactorily proved its defence in
accordance with the provisions of Section
149 (2) read with subsection (7), as
interpreted by this Court above, the
Tribunal can direct that the insurer is
liable to be reimbursed by the insured for
the compensation and other amounts
which it has been compelled to pay to the
third party under the award of the
Tribunal. Such determination of claim by
the Tribunal will be enforceable and the
money found due to the insurer from the
insured will be recoverable on a
certificate issued by the Tribunal to the
Collector in the same manner under
Section 174 of the Act as arrears of land
revenue. The certificate will be issued for
the recovery as arrears of land revenue
only if as required by Sub-Section (3) of
Section 168 of the Act, the insured fails
to deposit the amount awarded in favour
of the insurer within thirty days from the
date of announcement of the award by
the Tribunal.
(xi) :- The provisions contains in Sub Section (4)
with the proviso there under and sub
 17
Section (5) which are intended to cover
specified contingences mentioned
therein to enable the insurer to recover
the amount paid under the contract of
insurance on behalf of insured can be
taken recourse of by the Tribunal and be
extended to claim and defences of
insurer against insured by relegating
them to the remedy before regular Court
in cases where on given facts and
circumstances adjudication of their
claims inter se, might be delay the
adjudication of the claims of the victims.”

Therefore, as per the dictum laid down in National Insurance

Company Limited Vs., Swaran Singh (2004 ACJ 1 (SC); in
United India Insurance Company Limited Vs., S.Saravanan
(2010 ACJ 2046 Madras), United India Insurance Company
Limited Vs., Nagammal (2009 ACJ 865 Madras); in Jawahar
Singh Vs., Blajain (2011 ACJ 1677 (SC),

it is settled that if the insurer establishes that there is breach

of policy conditions under Section 149 (2) (a) and clause (ii), the
insurance company though not liable as it has successfully
established its defence can be directed to pay and recover from
the insured.
In Jawahar Singh Vs., Balajain (2011 ACJ 1577 (SC),
Where the Supreme Court upheld the order of Tribunal
directing the insurer to pay and recover from the insured in
case of a minor who did not possess and could not have
possessed any licence at all, caused the accident. Therefore,
even in case of no licence, if the insurance company establishes
that the driver of the insured vehicle was not in position of any
type of licence, the insurance company is to be exonerated but
as per the subsections (4) and (5) of Section 149 of the Act, they
can be directed to pay and recover.

28. Now the question is whether the second respondent/insurance company is

liable to pay compensation since the offending Van plied in violation of the terms

of insurance policy, insured with second respondent. Admittedly, as per the terms

of the policy the insurance company is not liable to pay compensation and they

are not liable to indemnify the first respondent, in case of breach of terms of the

policy.

In Kusumalatha Vs., Satbir and others, (AIR 2011 SC

1234), it was held that the Tribunal has inherent power to
give such directions to pay and recover.
 18

In Jayaprakash Agarwal Vs., Mohammad

Khalimullah, (2013) 11 SCC 35,

having considered the law at length taken similar view

and further observed that each case has to be decided on
its own facts and circumstances.
In S.Iyyappan Vs., United India Insurance
Company Limited (2013) 7 SCC 62,

the Division Bench of Apex Court held that “even though

the insurer has taken a defence that there is a breach of
condition of policy excluding from liability that the driver
is not duly licenced in driving the crime vehicle when met
with accident, third party has a statutory right under
Section 149 read with 168 of the Act to recover
compensation from insurer and it was for the insurer to
proceed against the insured for recovery of the amount
paid to third party in case there was any fundamental
breach of condition of insurance policy”.

29. From the above legal principles of law, the fact that the accident was the

result of rash and negligent driving of the driver of the Van insured with second

respondent covered by Ex.B-1 insurance policy with reference to Ex.A-1 first

information report and Ex.A-4 charge sheet. Thus, the only thing to be seen is

whether the owner and insurer are liable to pay compensation, if so to what

amount and with what liability respectively. There is nothing to rebut the

evidence of the second respondent/insurer including from cross-examination by

the claimants, from the owner of the vehicle remained silent to say the driver got

any valid driving licence. Thus, there is no valid driving licence is once proved and

when there is nothing to say it is allowed by the owner with willful and conscious

knowledge breach so fundamental, it is a fit case to order to pay and recover,

inview of the decisions reported in:

In Oriental Insurance Company Ltd., Vs., Nanijappan (2004 ACJ

721 (SC), the mode of recovery is being mentioned as follows:
“For the purpose of recovery the compensation amount from the
insured, the insurer shall not be required to fie a suit. It may
initiate proceedings before the concerned executing Court as if
the dispute between the insurer and owner was the subject
matter of determination before the Tribunal and the issue is
decided against the owner and infavour of the insurer. A notice
shall be issued to the insurer to furnish security for the entire
 19
amount. The offending vehicle shall be attached as a part of a
security. If necessary arises, the executing Court shall take
assistance of concerned Regional Transport Authority. The
execution Court shall pass appropriate orders in accordance with
law as to the manner in which the insured, the owner of the
vehicle, shall make payment to the insurer. In case, there is any
default, it shall be opened to the executing Court to direct
realization by disposal of the securities to be furnished or from
any other property of the insured.”
National Insurance company Ltd., Vs., Swaran Singh and
others (2004 ACJ Page 1), United Insurance Company Limited
Vs., Lehru, (2003 ACJ 611) and Kusumalatha Vs., Satbir and
others (AIR 2011 SC 1254).

Accordingly, this issue is answered.

Issue No.5

To what relief?

30. In the result, I hold that the driver of the offending vehicle did not possess

valid driving licence, the insurance company though exonerated but directed to

pay and recover the same from the owner of the vehicle by filing execution

petition in the same award without need of any separate proceedings. Therefore,

respondents are jointly and severally liable to pay compensation with the above

direction. Hence, I find the issue accordingly.

M.V.O.P.No.548/2013

30. In the result, the claim of the claimant is hereby partly allowed with

proportionate costs, awarding compensation of Rs.49,648/- (Rupees forty

nine thousands six hundred forty eight only) to the claimant and with

subsequent interest at the rate of 7.5% per annum from the date of petition

till the date of deposit. The time for deposit award amount is one month. The

same is pay with joint and several liability of the insured and insurer

(respondents 1 and 2 ) to pay by the insurer and then to recover

( compensation as directed the mode in the decision of Oriental Insurance

Company Ltd., Vs., Nanjappan, 2004 ACJ 721 (SC)). After deposit, the claimant

is hereby permitted to withdraw entire amount with accrued interest

 20
thereon. Advocate fee is fixed at Rs.2,000/-. The rest of the claim is hereby

dismissed without costs.

M.V.O.P.No.549/2013

31. In the result, the claim of the claimants is hereby partly allowed with

proportionate costs, awarding compensation of Rs.2,90,440/- (Rupees two

lakhs ninety thousands four hundred forty only) to the claimants and with

subsequent interest at the rate of 7.5% per annum from the date of petition

till the date of deposit. The time for deposit award amount is one month. The

same is pay with joint and several liability of the insured and insurer

(respondents 1 and 2 ) to pay by the insurer and then to recover

( compensation as directed the mode in the decision of Oriental Insurance

Company Ltd., Vs., Nanjappan, 2004 ACJ 721 (SC)). After deposit, the

claimants are hereby permitted to withdraw entire amount with accrued

interest thereon with ratio of 50:50 i.e., Rs.1,45,220/- each. Advocate fee is

fixed at Rs.2,000/-. The rest of the claim is hereby dismissed without costs.

Typed on my direct dictation by the steno-typist corrected and pronounced

by me in the open Court on this the 18th day of April 2017.

Chairman,
IV ADDL.MOTOR ACCIDENTS CLAIMANTS TRIBUNAL,
NELLORE.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR

WITNESSES EXAMINED ON BEHALF OF CLAIMANTS

PW-1 :- Koduru Vasudeva who is first claimant in M.V.O.P.No.549/2013
Pw-2 :- Sk.Kalesha, who is claimant in M.V.O.P.No.548/2013
PW-3 :- P.Ramachandraiah, who is working as clerk in Priyadarshini Engineering
College.
DOCUMENTS MARKED ON BEHALF OF CLAIMANTS
Ex.A-1 :- Certified copy of First information report in crime No.380/2013 of V
Town Police Station

Ex.A-2 :- Certified copy of inquest report of Koduru Saibaba

Ex.A-3 :- Certified copy of postmortem certificate of deceased Saibaba
Ex.A-4 :- Certified copy of charge sheet
Ex.A-5 :- Salary certificate issued by Principal, Priyadharshini College of
 21
Engineering and Technology, Nellore
Ex.A-6 :- Discharge summary issued by Narayana General hospital, Nellore in the
name of Sk.Kalesha
Ex.A-7 :- Certified copy of wound certificate of PW-2
Ex.A-8 :- Bunch of Medical Bills (Sixteen in number) issued by Narayana Hospital,
Nellore for Rs.10,648.37ps
Ex.A-9 :- Bunch of Medical Prescriptions (six in number) issued by Narayana
Hospital, Nellore
Ex.A-10 :- One positive photo along with compact disc
MARKED DOCUMENTS THROUGH THE EVIDENCE OF PW-3
Ex.X-1 :- Authorization letter 3.9.2016 issued by Principal of Priyadarshini
Engineering & Technology authorizing PW-3 to depose evidence.
Ex.X-2 :- Service Certificate of deceased K.Saibabu issued by Principal of
Priyadarshini Engineering & Technology
Ex.X-3 to :- Salary Certificates of deceased K.Saibaba from April 2013 to July 2013
Ex.X-6
Ex.X-7 to :- Copies of attendance registers of our college from 2008 to 2013
Ex.X-12 respectively
Ex.X-13 :- Xerox copy of driving licence stands in the name of deceased Saibabu
(original produced, compared with original and found correct)

WITNESSES EXAMINED ON BEHALF OF SECOND RESPONDENT

RW-1 :- V.Sreenivasa Rao, who is working as Junior Assistant in Regional
Transport Office, Nellore
Rw-2 :- M.Subrahmanyam, who is working as Administrative Officer in second
respondent insurance company
DOCUMENTS MARKED ON BEHALF OF SECOND RESPONDENT
Ex.B-1 :- Policy No.462990/31/2013/2120 valid from 9.2.2013 to
8.2.2014.

Ex.X-14 Authorization letter dated 16.3.2017 authorizing RW-1 to depose

evidence

Ex.X-15 :- Driving licence particulars of N.Vinod Kumar, son of Seenaiah

CHAIRMAN
IV ADDL.MOTOR ACCIDENTS CLAIMANTS TRIBUNAL,
NELLORE.