IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.1693 OF 2001 BETWEEN: Karna Kotamma W/o. Kotireddy …. Appellant AND 1. Paritala Guru Prasad S/o. Mondioodu 2. M/s. United India Insurance Company Limited, Divisional Office, Jyothnagar, Ramagundam …. Respondents (Respondent No.1 dismissed for default vide C.O. dated 22-09-2008) THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.1693 OF 2001 JUDGMENT: This appeal is by the claimant, who sought compensation of Rs.50,000/ for the injuries sustained by her in the accident occurred on 06-06-1994. The aforesaid claim petition came to be filed when the claimant, who is an agricultural coolie, was hit by the offending lorry bearing No.AP15T8888 while crossing the road. The said accident caused fracture to her right wrist and right coller bone. A case in Crime No.44 of 1994 was registered by the Station House Officer, Darsi Police Station against the owner of the offending vehicle. The claimant, therefore, alleged that on account of the said accident, she has not only suffered medical expenditure towards treatment, medicines and also suffered loss of earnings during the period in which she was unable to go for work. 2. As usual, the Insurance Company only contested the claim petition and it raised all possible defences of denial. The most important among them being, which was accepted by the Tribunal below, was that the driver of the vehicle did not have valid licence, the same was sought to be established on the basis of the charge sheet (Ex.A-3) filed by the police and consequently, the Tribunal came to the conclusion that the Insurance Company is not liable. So far as the quantum of compensation is concerned, considering the disability and inconvenience caused to the claimant, aggregate compensation of Rs.35,000/- was awarded by the Tribunal below. 3. Dissatisfied with the award of compensation granted by the Tribunal below, the present appeal is filed by the appellant. 4. I have heard the learned counsel for the appellant and the learned counsel representing respondent No.2 – Insurance Company. 5. Though, the learned counsel for the appellant has made submissions seeking enhancement as prayed for, in view of the fact that the present appeal stood dismissed against respondent No.1, the enhancement as prayed for, cannot be considered in the present appeal. 6. The learned counsel for the appellant contends that the Tribunal below ought to have granted the imposed liability on respondent No.2 - Insurance Company, even if driving licence of the driver of the offending vehicle was not found valid. He also submitted that there is no evidence produced by the Insurance Company and merely relying upon the charge sheet and the FIR, the said contention was raised and the same was rightly accepted by the Tribunal. According to learned counsel, the burden of establishing the same was on the Insurance Company, which remained un-discharged. 7. Learned counsel for respondent No.2 - Insurance Company contends that the Insurance company cannot be said to be liable, if there is breach of conditions of Insurance policy and that a person not having valid driving licence, caused the accident. Several decisions of the Supreme Court are cited by the learned counsel for respondent No.2 namely 1) NATIONAL INSURANCE COMPANY LIMITED v. KUSUM RAI AND OTHERS[1], 2) SARDARI AND OTHERS v. SUSHIL KUMAR AND OTHERS[2] and the decision of the learned single Judge of Bombay High Court in UNITED INDIA INSURANCE COMPANY LIMITED v. ANUBAI GOPICHAND THAKARE AND OTHERS[3]. 8. Per contra, learned counsel for the appellant relies upon a decision in PREMKUMARI AND OTHERS v. PRAHLAD DEV AND OTHERS[4]. 9. The aforesaid decisions, on either side, are relied upon mainly for the proposition that even if Insurance Company is not liable on account of breach of conditions of the policy, the claimant can, as a whole, be compensated by the Insurance Company and later Insurance company be directed to recover the amounts paid by it from the owner. The said principle ‘pay and recover’ was first recognized by the Supreme Court in a decision in NATIONAL INSURANCE COMPANY LIMITED v. SWARAN SINGH[5], which is referred in all the decisions cited above. 10. The distinction sought to be made by the learned counsel for respondent No.2 that the aforesaid direction of ‘pay and recover’ is passed by the Supreme Court under its plenary powers under Article 142 of the Constitution of India and the said power being not available for the High Courts, when the Insurance Company is not liable, a direction to ‘pay and recover’ cannot be passed. A strong reliance is placed on a decision of a learned single Judge of Bombay High Court in support of the said line of argument. Learned counsel, however, fairly informs the Court that the said view of the learned single Judge of the Bombay High Court is under reconsideration before a larger Bench as well as the view in Swaran Singh’s case is also referred to a larger Bench for reconsideration. 11. The learned counsel for the appellant however submits that in view of the latest decisions of the Supreme Court in Premkumari’s case (4 cited supra), the principle ‘pay and recover’ is uniformly applied in all cases involving third party risk. Where the victims of the road accidents unconnected with the vehicles or the owner have no control as to who drives the motor vehicle at the time of the accident. He further submits that irrespective of the liability of the Insurance Company, the principle of ‘pay and recover’ must be applied in the present case. 12. In view of the latest decisions of the Supreme Court referred to in the paragraph above, would squarely apply to the facts of this case as the victim here is also a third party, who was injured by the offending vehicle, while crossing the road. 13. However, another important aspect, which has missed the attention of the Tribunal below, must be noted. The Motor Vehicles Inspector’s report in the present case is filed and marked as Ex.A-4. As against column 17, the report mentions the driving licence particulars of the driver of the offending vehicle, which shows that the licence held by him was valid up to 14-05-1994. The accident is occurred on 06-06-1994. It is statutory under the Motor Vehicles Rules that a licence, which has reached expiry will have 30 days grace period to enable its renewal and during the said grace period, the licence is deemed to be valid. As per the above rule, the licence of the driver, which expired on 14-05-1994, would be deemed to be valid for a period of 30 days i.e. till 13-06-1994 and since the accident in question has occurred on 06-06-1994, it cannot be said that the driver had no valid driving lincence. 14. Therefore, the finding of the Tribunal that the Insurance Company is not liable on the ground that the driver had no valid driving licence on the date of accident, is liable to be reversed. As a consequence therefore, the claim awarded by the Tribunal below shall be jointly and severally enforceable against all the respondents including the Insurance Company. The appeal therefore, deserves to be allowed and there shall be decree for the amount awarded by the Tribunal against all the respondents. This also leaves one small issue regarding interest to be dealt with. The interest awarded by the Tribunal below is 12% per annum. The interest however, is not granted at the aforesaid rate in view of the global economical position and in all the decisions of the Hon’ble Supreme Court and this Court interest is consistently being granted @7.5% per annum. In that view of the matter, with a view to maintain consistency, though there is no appeal by the Insurance Company, I am inclined to reduce the interest to 7.5%. 15. In the result, the appeal is disposed of and the decree of the Tribunal below is confirmed except that interest is granted @7.5% per annum on decreed amount from the date of claim till realization. The decree herein shall be enforceable against all the respondents including the Insurance Company. There shall be no order as to costs. ________________________ VILAS V. AFZULPURKAR, J November 27, 2009. KTL [1] 2006 ACJ 1336 [2] 2008 ACJ 1307 [3] 2008 ACJ 213 [4] (2008) 3 Supreme Court Cases 193 [5] 2004 ACJ 1 (SC)