IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2572 of 2003 Between: The United India Insurance Company Limited, Having its Regional Office at United India Towers, 3-5-817 & 818, Basheerbagh, Hyderabad – 29. .. Appellant AND Ismail Saheb & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2572 of 2003 JUDGMENT: This appeal is directed against the award in O.P.No.107 of 1998, on the file of the Motor Accidents Claims Tribunal-cum- Additional District Judge, Madanapalle, dated 07.02.2003. 2. The claimant and Shaik Hydervalli were going to their residence on 15.06.1997 at about 1.10 p.m. and near the Sweet Stall of Kanakanti Ramachandra, the tractor No.AP 03B 4560 driven by the second respondent came from behind in a rash and negligent manner and dashed against them. The rash and negligent driving of the tractor in high speed resulted in severe injuries to the claimant and Shaik Hydervalli and the claimant was first treated at the Government Hospital, Madanapalle and then at Saint John’s Hospital, Bangalore. After discharge, he was treated by Dr. Sanjeevarayudu, Madanapalle. He incurred a total expense of Rs.25,000/- towards medicines and treatment. Hence, he sued for a compensation of Rs.1,00,000/- from the owner, driver and insurer of the tractor. 3. The first respondent/owner of the tractor put the claimant to strict proof of his allegations and claimed that he sustained only simple injuries without any disability and even if any compensation is payable, the same has to be paid by the third respondent/insurer. 4. While the second respondent/driver remained ex parte, the third respondent/insurer also put the claimant to strict proof and the vehicle appears to have not been insured at all with the third respondent as seen from the records. The third respondent also claimed the compensation sought for to be excessive. 5. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant for compensation and during the course of enquiry, the Tribunal examined P.Ws.1 and 2 and R.W.1 and marked Exs.A- 1 to A-5 and B-1 and B-2. 6. The Tribunal rendered the impugned award firstly accepting the evidence of the injured P.W.1 corroborated by Ex.A-1-First Information Report and not controverted by any evidence of the respondents and held that the rash and negligent driving of the tractor by the second respondent/driver resulted in the accident. The ownership of the tractor with the first respondent was also noted to be undisputed and the Tribunal observed with reference to the evidence of R.W.1, the Assistant Administrative Officer of the third respondent/insurer, that Exs.B-1 and B-2-Insurance Policies were in force from 06.04.1996 to 05.04.1997 and from 24.06.1997 to 23.06.1998 respectively. While the accident took place on 15.06.1997 when no insurance policy was in force, the Tribunal opined that the third respondent cannot escape from its liability on the ground of absence of insurance for the tractor on the date of the accident. The plea was also not taken in the counter and consequently, the Tribunal considered all the three respondents to be jointly and severally liable for the claim. The Tribunal also referred to ORIENTAL INSURANCE COMPANY LIMITED VS. INDRAJIT KAUR AND OTHERS[1], wherein the Apex Court held that despite the bar created by Section 64-VB of the Insurance Act, 1938, the authorized insurer who issued a policy of insurance is liable to cover the indemnification of the liability to third parties. The Tribunal consequently assessed the quantum of compensation payable at Rs.5,000/- towards medical expenses, Rs.5,000/- towards pain and suffering and Rs.15,000/- towards loss of earnings. On the total compensation of Rs.25,000/-, the Tribunal awarded interest at 9% per annum and proportionate costs. 7. The appellant/insurer is before this Court challenging the said award contending that Ex.A-3-Charge Sheet mentioned that the driver of the vehicle had no valid driving licence due to which he was prosecuted under the Motor Vehicles Act, 1988. The Tribunal also failed to absolve the third respondent from liability in the absence of any subsisting policy of insurance on the date of the accident. The appellant also contended that the assessment of compensation also was incorrect and hence, it desired the impugned award to be reversed. 8. Heard Sri G.S. Prakash Rao, learned counsel for the appellant and Sri K. Mahadeva, learned counsel for the second respondent/owner of the tractor and Sri Manjunadh Allur, learned counsel for the claimant/first respondent. None appeared for the third respondent/driver of the vehicle. 9. The point for consideration is whether any liability could have been fastened to the insurer in the absence of any insurance policy as on the date of the accident. 10. Exs.B-1 and B-2-Insurance Policies and the evidence of R.W.1 positively showed, in the absence of any contrary evidence, that there was no valid and subsisting insurance policy for the vehicle on the date of the accident. Ex.A-3-Charge Sheet filed by the claimant himself showed that the driver of the vehicle was prosecuted under Section 181 read with Section 187 of the Motor Vehicles Act, 1988. In the written statement filed by the insurer, it was not only specifically stated that none of the allegations of the claimant are admitted and it was also specified that the tractor being insured with the third respondent at the time of the accident is not admitted and that the cover note number mentioned by the claimant in the claim petition did not tally with the series of the policies issued by the branch office of the third respondent at Madanapalle. The third respondent also claimed to have thoroughly verified all the records of the company’s branch office at Madanapalle and that it was reliably learnt on such verification that the vehicle was not insured at the time of the accident. It further pleaded that it is for the claimant to prove that the driver of the tractor had a valid and subsisting driving licence at the relevant time. Hence, the observation of the Tribunal that the non-existence of the insurance policy was not pleaded in the written statement is not correct and the evidence of P.W.1 or the documents filed by him do not in any manner contradict the evidence of R.W.1 about the absence of any insurance for the vehicle as on the date of the accident. Apart from the probable absence of a valid driving licence for the driver, as seen from his prosecution for the specified offences under Ex.A-3-Charge Sheet, the absence of any insurance policy on the date of the accident has to automatically absolve the appellant/third respondent from the liability notwithstanding the existence of any such insurance earlier or later to the accident. INDRAJIT KAUR’s case (supra 1) relied on by the Tribunal was a case where a policy of insurance was issued by the authorized insurer at the relevant time, but the insurer claimed his right to avoid the policy. It is not a case where there was no policy at all. Under the circumstances, the award passed against the insurer has to be set aside. 11. In the result, the award in O.P.No.107 of 1998, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Madanapalle, dated 07.02.2003, against the appellant/third respondent is set aside and the said O.P.No.107 of 1998 is dismissed without costs in so far as the appellant/third respondent is concerned. 12. The Civil Miscellaneous Appeal is allowed, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 24th February, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2572 of 2003 Date: 24th February, 2011 KL [1] AIR 1998 SC 588