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IN THE COURT OF THE JUDGE; IV ADDL.MOTOR

ACCIDENTS CLAIMS TRIBUNAL :NELLORE AT SRI POTTI
SRIRAMULU NELLORE DISTRICT

Present: SRI CH.RAMACHANDRA MURTHY,B.Com.,M.L.,

Chairman of IV Addl. Motor Accidents Claims Tribunal,
Nellore

MONDAY, THIS THE TWENTY NINTH DAY OF DECEMBER 2014

M.V.O.P.No.406 OF 2011
Between:
Marri Pullaiah
Son of Venkataiah, Hindu, aged
About 50 years, resident of
Kammavaripalli village, Anantha Sagaram
Mandal, Sri P.S.R.Nellore District …
Claimant

AND

1. N.Seshu Reddy,
Son of Basi Reddy, Hindu, owner of the Tractor
Registration No.AP 26 AC 7488 and residing at
27-1083, Kondandaramapuram, A.C.Nagar, Nellore,

2.Royal Sundaram Alliance Insurance Company

Limited represented by its Branch Manager, having
Its Branch Office is situated at Gandhi Nagar,
Nellore, who is the insurer of the Tractor bearing
Registration No.AP 26 AC 7488 under policy
Cover Note No.2033211 valid from 22.4.2010 to
21.4.2011 (Policy issued by Chennai Branch) …
Respondents

This petition is coming before me on 15.12.2014 for final hearing in

the presence of Sri T.V.Kalyan Kumar advocate for the claimant, and of Sri
N.Kodanda Rami Reddy advocate for 2nd respondent and first respondent
has been called absent and set exparte and upon perusing the material
papers on record and upon hearing both sides, this Court made the
following:

ORDER

1. This claimant/Marri Polaiah filed claim petition under Section 166 of

Motor Vehicles Act, for granting compensation of Rs.3,00,000/- with the

following averments:-

(i) The petitioner aged 50 years, agricultural coolie earning

Rs.8,000/- per month. On 22.12011 at 1-00 P.M., the petitioner boarded

one Tractor bearing No.AP 26 Ac 7488 as a coolie at the request of one

Venkata Rami Reddy and proceeded towards the fields of Venkata Rami

Reddy. The petitioner was sitting on the Tractor back side by holding iron
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rod. The driver of the Tractor drove the same in a rash and negligent

manner, resulting he fell down and received grievous injuries. He was

shifted to Narayana Hospital, Nellore, where he underwent surgery to his

right leg. He spent Rs.50,000/- towards medical expenses. Ac case was

registered in crime No.1/2011 under Section 338 IPC by Somasila Police

Station. The petitioner became permanently disabled and he unable to

attend to his normal duties. Therefore, both the respondents are jointly

and severally liable to pay compensation as claimed by the petitioner.

2. The first respondent who is the owner and driver of the offending

Tractor bearing No.AP 26 Ac 7488, remained exparte.

3. The second respondent/insurance company filed counter by resisting

the claim and further contends that the driver of the Tractor was not

negligent and that he did not possess valid driving licence and denies the

age and incurring of medical expenses and further contends that the claim

is excessive. There was no valid permit for plying the Tractor. Therefore,

respondent requests to dismiss the petition.

4. On the Strength of above pleadings, the following issues are framed

for trial:

1.Whether the accident had occurred due to the rash and negligent
driving of the driver of the Tractor bearing Registration No.AP 26 AC
7488?

2. Whether the driver of the Offending Vehicle was having valid and
effective driving licence as on the date of accident?

3. Whether the claimant is entitled for compensation, if so, to what

amount and from which of the respondent?

4. To what relief?

5. On behalf of the petitioner, PWs-1 and PW-2 were examined and got

marked Exs.A-1 to A-5 were marked.

(i) PW-1/Marri Polaiah, who is the petitioner herein. PW-

2/Dr.M.O.Krishna Murthy, Orthopaedic Professor, Narayana Medical

College, Nellore.

Ex.A-1 :- Attested Xerox copy of First Information

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Report in Crime No.1/2011 of Somasila
Police Station

Ex.A-2 :- Attested Xerox copy of wound

certificate
Ex.A-3 :- Attested Xerox copy of discharge
summary issued by Narayana General
Hospital, Nellore
EX.A-4 :- Attested Xerox copy of charge sheet
Ex.A-5 :- Four photographs of the petitioner.

6. On behalf of Second respondent, T.Sunethra, who is working as

Junior Assistant in R.T.A., examined as RW-1. Through her evidence Ex.X-1

and Ex.X-2 are marked. RW-2 is Balasundaram Kamala Kannan, who is

working as claims officer in second respondent insurance company and

through his evidence Ex.B-1 the policy was marked.

(i) Ex.B-1 is policy bearing No.VOC0054453000100 valid from

22.4.2010 to 21.4.2011. (ii) Ex.X-1 is authorization letter dated 26.9.2014

authorising RW-1 to depose evidence. Ex.X-2 is grant of issue of driving

licene bearing No.DLFAPO2612212005 stands in the name of K.Srinivasulu,

son of Venkataiah.

7. Heard both sides and perused relevant records.

ISSUE No.1 :

1.Whether the accident had occurred due to the rash and negligent
driving of the driver of the Tractor bearing Registration No.AP 26 AC
7488?

8. It is not in serious dispute that first respondent is the owner of the

Tractor bearing No.AP 26 Ac 7488. It is evident from Ex.B-1 insurance

policy and Ex.A-4 Charge sheet filed before the learned Judicial Magistrate

of First Class, Atmakur. As per Ex.A-1 and Ex.A-4, the offending vehicle

was involved in the accident that occurred on 22.1.2011 at the fields of

Venkatarami Reddy, Patalapalli. As per Ex.A-1 and Ex.A-4, the first

respondent one Kamari Srinivasulu son of Venkataiah drove the offending

Tractor on the material date of accident. The petitioner is cited as witness

in Ex.A-4 as LW-2.
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9. Learned advocate for the petitioner argued that the accident took

place due to rash and negligent driving of the offending Tractor driven by

its driver. On the other hand, the second respondent contends that the

claimant was negligent at the time of the accident. The first respondent,

who is the owner of the offending vehicle, remained exparte. Second

respondent, who is insurance company did not choose to adduce evidence

regarding the manner of the accident, though they are contesting the

proceedings by taking permission under Section 170 of Motor Vehicles Act.

10. On the other hand, PW-1, who is injured categorically deposed that

the driver of the offending Tractor drove the Tractor with high speed and in

a rash and negligent manner while Tractor was proceeding on the Bunds of

the fields, resulting the wheels ran over his right leg and received crush

injury. He denied a suggestion that the driver was not negligent and that

he was negligent at the time of accident since he was standing on the iron

rod behind the Tractor. Nothing has been elicited from his cross-

examination to disprove his evidence. In addition to the evidence of PW-1,

as per Exs.A-1 and Ex.A-4 connected crime records clearly proves that

after completion of investigation, the investigation officer filed charge

sheet against the driver of the Tractor bearing No.AP 26 Ac 7488, alleging

that the Tractor driver drove his vehicle in a rash and negligent manner

and caused the accident. Contrary to the evidence of PW-1, second

respondent did not choose to adduce any evidence. Hence, I hold that the

driver of the offending Tractor was negligent at the time of accident.

Hence, I find the issue accordingly.

Issue No.2 & 3:-

2. Whether the driver of the Offending Vehicle was having valid and
effective driving licence as on the date of accident?

3. Whether the claimant is entitled for compensation, if so, to what

amount and from which of the respondent?

11. Issues Nos.2 and 3 are interrelated with each other. Hence, I

deal them together.

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As per Ex.A-2, PW-1 received the following injuries:-

1. Accidental below knee traumatic right leg

2. Tenderness of injury at medial side the groin 10 X 2 C.M,

3. Multiple abrasion over lateral side of right heep.

The above injuries are grievous in nature.

12. In order to prove the injuries referred above, PW-2 examined. PW-2

categorically deposed that petitioner admitted in Narayana Hospital

Nellore on 22.1.2011 and he underwent surgery. The patient was

discharged on 14.2.2011. There is permanent disability of about 25% of

the whole body and 32 to 40% on the right side of the leg. Exs.A-2 and

Ex.A-3 were issued by their hospital authorities. The age of patient was

noted as 46. The patient got treatment under Arogya Sree Scheme. He

denied a suggestion that the assessment of disability is not correct and he

is not competent to speak about disability. Nothing has been elicited from

his cross-examination to disprove his evidence regarding disability and

grievous injury sustained by the claimant. Taking into consideration of

the injuries received by the petitioner, I hereby award Rs.25,000/-

towards pain and sufferings.

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

petitioner did not choose to produce any bills regarding the claim of

compensation under the head of medial expenses. Therefore, the claim

under the head of medical expenses is hereby rejected. The petitioner did

not choose to produce any evidence regarding his monthly income as

agricultural coolie. In the absence of any such evidence, it would be

appropriate fix his monthly income of Rs.3,000/- per month. Taking into

consideration of injuries sustained by the petitioner, I hereby award Rs.

Rs.12,000/- (Rs.3,000 X 4) towards loss of earnings.

14. As per evidence of PW-2, the petitioner sustained permanent

disability at 32% to 40% . Admittedly as per Ex.A-5 photographs and

medical evidence, the petitioner sustained crush injury. Taking into

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evidence of Pw-2 and available medical records, I assessed permanent

disability at 40%. The annual income of the petitioner comes to Rs.36,000

(Rs.3,000 X 12). As per evidence of PW-2, the age of the petitioner was

forty six years. The appropriate multiplier for the age group of 46 to 50 is

twelve (12). The total loss of future earnings due to permanent

disability comes to Rs.1,72,800/- (RS.36,000 X 12 X 40/100).

The compensation awarded to the petitioner is as follows:-

S.No. Nature of Amount

compensation awarded
1. Pain and sufferings Rs.25,000-00
2. Transport charges Rs.2,000-00
3. Loss of earnings Rs.12,000-00
4. Permanent Rs.1,72,800-00
disability and loss
of future earnings
Total
Rs.2,11,800-00
(Rupees two laksh eleven thousands eight
hundred only)

15. It is also contended by the counsel for the second respondent that

the driver of the offending Tractor bearing No.AP 26 AC 7488 did not

possess valid driving licence to drive the transport Tractor and that second

respondent is not liable to pay compensation for violation of terms of the

policy.

16. It is well settled that the onus is on the insurance company to prove

that there was willful breach of the terms of the policy as envisaged under

Section 149 (2) of the Motor Vehicles Act. It is not within the knowledge of

claimant as to whether the driver of the Tractor bearing No.AP 26 AC 7488,

owned by the first respondent was possessing valid driving licence. The

second respondent insurance company did not choose to adduce any

evidence to prove that first respondent did not possess valid driving

licence as on the material date of accident. In the absence of any such

evidence, it cannot be said that the first respondent did not possess valid

driving licence.
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17. In order to prove their contentions the second respondent

examined as RW-1, who is working as Junior Assistant in Regional

Transport Authority, Nellore. As per Ex.X-1 she is authorized to depose

evidence. As per her evidence, Ex.X-2 driving licence particulars of the

driver of the offending Tractor, he was authorized to drive non-transport

light motor vehicle on the material date of accident. According to her

one has to possess a separate driving licence for driving Tractor and

Trailer. She denied a suggestion that the Tractor Trailer comes under

the definition of light motor vehicle.

18. RW-2 is claims officer working in second respondent insurance

company also supported the evidence of RW-1

19. Before proceeding further it would be appropriate to refer to the

decisions of Apex Court regarding the possession of Valid driving licence.

In Insurance Company Limited

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

The two 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
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“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
licence 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.”

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
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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 Catena 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.

20. Now the question is whether the second respondent/insurance

company is liable to pay compensation since the offending Tractor

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.

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”.
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21. Learned advocate for the petitioner argued that insurance

company cannot escape liability in case of third party claims

and that they are liable to pay compensation and recover the

same from owner.

22. After considering the same, in decisions reported in:

AIR 2004 Supreme Court 1531, National

Insurance co. Ltd.

AIR 2008 Supreme Court 614 New India

Assurance co. Ltd. Vs Prabhu Lal wherein the
apex court directed to pay and recover
compensation from owner.
In oriental insurance co. Ltd. Vs
Shahnawaz and others,2014 ACJ 2124,
the driver possess license to drive non-
transport light motor vehicle. But he drove
offending tourist taxi, which is used for
commercial purpose. In that connection
after following the decision of Honourouble
apex court reported in National insurance
co. Ltd. Vs Kusum Rai, 2006 ACJ 1336
(SC), observed that the insurance company
cannot avoid its liability towards third party,
and insurance company bound to satisfy
the award and then recover the amount
from the owner and driver in execution of
this very judgment without having recourse
to independent civil proceedings.

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

Tractor insured with second respondent covered by Ex.B-1

insurance policy is proved from the evidence of PW-1 with

reference to Ex.A-1 first information report and Ex.A-4 charge

sheet. Thus, the only thing is to be seen is whether the owner and

insurer are liable to pay compensation if so to what amount and

with what liability respectively. Thus, there is no valid driving

licence is once proved and when there is nothing to say it is

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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 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 realisation 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).

Hence, I find the issues accordingly.

Issue No.4:-

To what relief?

23. 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, both

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respondents are jointly and severally liable to pay compensation

with the above direction.

Hence, I find the issue accordingly.

24. In the result, the claim of the claimant is hereby partly

allowed with proportionate costs, awarding compensation of

Rs.2,11,800/- (Rupees two lakhs eleven thousands

eight hundred only) with subsequent interest at 7.5% per

annum from the date of petition till the date of deposit. The

same is directed to pay with joint and several liability of the

insured and insurer (respondents 1 and 2 ) to pay by the

insurer (second respondent) and then to recover from first

respondent (insured) ( compensation as directed the mode in

the decision of Oriental Insurance Company Ltd., Vs.,

Nanjappan, 2004 ACJ 721 (SC)) The award amount shall

deposit within one month. On deposit the petitioner is

permitted with draw half of the amount and the remaining

amount shall be kept in any nationalized bank for a period of

three years. Advocate fee is fixed at Rs.1,000/-.

Typed on my direct dictation by the steno typist, corrected and

pronounced by me in the open Court on this the day 29th day of
December 2014.

CHAIRMAN,
IV ADDL.MOTOR ACCIDENTS CLAIMANTS
TRIBUNAL, NELLORE.

APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
CLAIMANT: 2nd RESPONDENT:
PW-1/Marri Polaiah RW-1/ T.Sunethra
PW-2/Dr.M.O.Krishna Murthy RW-2/Balasundaram Kamala Kannan,
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Ex.A-1 :- Attested Xerox copy of First Information
Report in Crime No.1/2011 of Somasila
Police Station

Ex.A-2 :- Attested Xerox copy of wound

certificate
Ex.A-3 :- Attested Xerox copy of discharge
summary issued by Narayana General
Hospital, Nellore
EX.A-4 :- Attested Xerox copy of charge sheet
Ex.A-5 :- Four photographs of the petitioner.

For 2nd Respondent:-

Ex.B-1/ Policy bearing No.VOC0054453000100 valid from 22.4.2010 to

21.4.2011 Ex.X-1/Authorization letter dated 26.9.2014 authorising RW-1 to
depose evidence. Ex.X-2/Grant of issue of driving licene bearing
No.DLFAPO2612212005 stands in the
name of K.Srinivasulu, son of Venkataiah.

CHAIRMAN
IV ADDL.MOTOR ACCIDENTS CLAIMANTS
TRIBUNAL, NELLORE.