IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.8 of 2008 Between: National Insurance Company Limited, reptd. by its Divisional Manager, Ananthapur .. Appellant AND Golla Ramesh @ Golla Velpula Ramesh and another .. Respondents ORDER: The appeal is directed against the award dated 07-09-2007 in M.V.O.P.No.315 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Kurnool. The factual background is that the 1st respondent herein and others boarded auto No.AP-21-V 9188 on 23-07-2005 and when the auto reached near Chiruthalagutta, the auto driver lost his control due to driving rashly and negligently at high speed and the auto turned turtle. Peapully Police registered Crime No.38 of 2005 and the 1st respondent herein sustained fracture of right femur, right elbow and injuries over the rest of the body. He was treated at Government Hospital, Dhone, and then at Government General Hospital, Kurnool, as an inpatient for 36 days spending Rs.20,000/- for treatment, but still he sustained a permanent disability to his right elbow. He is earning Rs.50,000/- per annum as an agriculturist at the age of 20 years and he lost his income being unable to attend to any work for long time after the accident. Hence, he sought for compensation of Rs.1,00,000/- from the owner and insurer of the auto. While the owner of the auto remained ex parte before the Tribunal, the insurer denied all the allegations of the claimant and put him to strict proof of a valid and effective driving licence for the auto driver, fitness certificate and route permit for the auto and rash and negligent driving of the auto by the driver. The insurer contended that the terms and conditions of the insurance policy were violated and hence, it may be permitted to recover any amount, it was forced to pay to the claimant, from the owner of the auto. The insurer obtained permission under Section 170 of the Motor Vehicles Act in I.A.No.1433 of 2007 from the Tribunal. The Tribunal framed issues on the responsibility for the accident, the entitlement of the claimant for compensation and the liability of the respondents for the same. During enquiry, PWs.1 and 2 and RWs.1 and 2 were examined and Exs.A.1 to A.5, B.1 and B.2, and X.1 to X.4 were marked. The Tribunal rendered the impugned award firstly, concluding that the rash and negligent driving of the auto driver alone caused the accident basing on Ex.A.1-FIR and Ex.A.3- Charge sheet, corroborating the claims of PW.1, the injured. The Tribunal found corroboration to the claims of PW.1 about the injuries and their consequences from the evidence of the doctor as PW.2 and Ex.A.2-wound certificate, Ex.A.4-Discharge Summary and Ex.A.5-bunch of medical bills. The Tribunal took into account the nature of treatment, its duration and the fractures to award Rs.22,000/- towards pain and suffering and Rs.6,000/- towards medicines and treatment based on Ex.A.5-medical bills and Rs.1,000/- each towards extra nourishment and incidental expenses. The Tribunal also awarded Rs.6,000/- towards loss of earnings and Rs.5,000/- towards loss of future earnings taking into account 20% permanent partial disability certified by PW.2. On the total compensation of Rs.41,000/-, the Tribunal considered it appropriate to award interest at 7.5% and proportionate costs. The Tribunal considered the question of violation of the terms and conditions of the policy in respect of which the insurer had examined RWs.1 and 2 and marked Ex.B.1-Insurance Policy, Ex.B.2-copy of the driving licence, Exs.X-3 and X-4-authorisation letter and driving licence extract. The Tribunal opined that the only difference between non-transport and transport vehicles is to have a badge, which has nothing to do with the efficiency of the driver, and therefore, ignored the driver having licence only to drive a non-transport vehicle. Consequently, the Tribunal fastened the liability on the respondents to pay the compensation jointly and severally. The insurer challenges the said award in this appeal mainly on the ground of the driver having no valid and effective driving licence and the owner consequentially violating the terms and conditions of the policy, when the auto was a transport vehicle to drive which the driver had no licence, apart from the auto carrying five persons as against the sitting capacity of the auto being only three persons. Sri M. Jeevan Reddy, learned standing counsel for the appellant, and Sri G. Venkat Reddy, learned counsel, representing Sri K. Rathanga Pani Reddy, learned counsel for the 1st respondent-claimant are heard. The owner of the auto did not enter appearance before this Court also. While ordering notice before admission on 22-01-2008, the entire award amount along with interest and costs were directed to be deposited by the appellant-insurer as a condition precedent for grant of interim stay. On 25-06-2008, the claimant was permitted to withdraw the amount as per the directions given in the award by the Tribunal. Insofar as the ownership of the auto with the 2nd respondent herein, its subsisting insurance with the appellant herein and the rash and negligent driving of the auto driver being the cause for the accident are concerned, the conclusions of the Tribunal in this regard are not challenged and consequently, the joint and several liability of both the respondents to the claim petition to justly and adequately compensate the injured claimant cannot be in doubt, except maybe on the ground of violation of the terms and conditions of the insurance policy, if established by the insurer. Even the quantum of compensation awarded by the Tribunal is not seriously in dispute and the insurer is insisting upon only its defence of violation of the terms and conditions of the insurance policy, in respect of which defence the claimant cannot be attributed with any knowledge, while the owner did not chose to contest. The insurer has produced positive evidence before the Tribunal through RWs.1 and 2 with RW.2 being the employee of the Road Transport Authority, Kurnool, producing the driving licence extract of the driver of the offending auto, which is identical to Ex.B.2-certified copy filed by RW.2, the Senior Assistant of Regional Transport Authority Office. While Ex.B.1- Insurance policy is clear in terms and conditions about the necessity to entrust the vehicle for driving only to such a person having a valid and effective driving licence to drive it, Ex.B.1/X.4 coupled with the evidence of RWs.1 and 2 shows that the driver had no licence to drive the auto in question, while he holds a vehicle to drive a non-transport auto. The auto in question is a transport auto in which the passengers being carried at the time of accident were more than the permitted seating capacity. The owner cannot be presumed in the absence of any material, to be having no knowledge of incapacity of the driver to drive the vehicle in question nor can he be considered to have bonafide entrusted the vehicle to such a driver. The violation of the terms and conditions of the insurance policy thus by the owner of the vehicle absolves the insurer in law from any liability to pay the compensation to the 1st respondent herein. However, as already stated, the entire award amount with interest and costs were directed to be deposited by this Court on 22-01-2008 and was permitted to be withdrawn by the claimant as per the award and the award permitted the claimant to withdraw Rs.20,000/- immediately, while the balance was directed to be kept in fixed deposit for one year, which had expired long back. The claimant was, therefore, entitled to withdraw the entire sum and would have probably withdrawn the entire sum. As such, what is left to be applied herein is only the principle of “pay and recover” in favour of the insurer against the owner. Therefore, while not interfering with the impugned award in this appeal, the appellant-insurer is permitted to recover whatever amounts it has paid towards satisfaction of the impugned award from the 2nd respondent herein/the owner of the auto without the necessity of having to file any separate suit for this purpose and this direction itself being executable as a decree. The appeal is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 13-09-2010 Ksn