IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.4024 of 2003 Between: The New India Assurance Co. Ltd., rep. by its Divisional Manager, Nizamabad .. Appellant AND Aisha Siddiqui and others .. Respondents JUDGMENT: This appeal is directed against the award in O.P. No.626 of 1997 on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Nizamabad, dated 27-09-2002. The injured claimant was travelling in Jeep No.AP 1/C 1742 on 29-06-1997 at about 2.50 P.M. and near Perkit village the bus No.AP 10/Z 179 came in opposite direction. The vehicles collided with each other due to the rash and negligent driving by both the drivers resulting in the claimant suffering fractures and injuries, for which she was treated at Government Head Quarters hospital, Nizamabad and then by a private doctor. She claimed to have incurred more than Rs.50,000/- towards medical expenses etc., and claiming to be earning Rs.3,000/- per month as labourer at the age of 36 years, the claimant sought for a compensation of Rs.2,00,000/- against the owner, insurer of the jeep and the Andhra Pradesh State Road Transport Corporation, the owner of the bus, represented by two of its officers. While the owner of the jeep remained ex parte, the insurer denied the claim and contended that the jeep having a valid insurance policy also is denied. The accident was claimed to have happened due to the rash and negligent driving of the bus and the claimant is put to strict proof of all the other allegations. The Andhra Pradesh State Road Transport Corporation contested the claim denying the allegations of the claimant and contending that the accident was due to the rash and negligent driving of the jeep. The Tribunal framed issues about the entitlement of the claimant to compensation and examined P.Ws.1 and 2 and marked Exs.A.1 to A.9, B.1 and C.1 during the enquiry. The Tribunal rendered the impugned award firstly holding on the evidence of P.W.1 that the accident occurred due to the rash and negligent driving of both the vehicles. The Tribunal assessed the compensation payable at Rs.2,00,000/- jointly and severally payable equally by respondents 1 and 2 on one hand and respondents 3 to 4 on the other with interest at 9 per cent per annum and proportionate costs. The insurer of the jeep filed the present appeal contending that neither the Motor Vehicles Act nor the insurance policy in question extends the coverage of insurance to the hire-paid passengers in the absence of payment of any premium. The restrictions regarding the use of the vehicle were also claimed to have been violated. The insurer of the jeep, therefore, desired the impugned award to be reversed. Sri Kota Subba Rao, learned standing counsel for the appellant and Sri Kuldeep Jadhav, learned counsel representing Sri P. Radhive Reddy, learned counsel for the claimant are heard. The finding of the Tribunal about the equal responsibility of the drivers of both the vehicles for the accident caused by their rash and negligent driving has become final in the absence of any challenge by either party and the Andhra Pradesh State Road Transport Corporation, over which the liability to pay half of the compensation was imposed, did not approach this Court with any appeal or cross-objections. The quantum of compensation was also not challenged by the said Corporation and though a feeble attempt was made by the appellant in this appeal to question the quantum awarded by the Tribunal, in the light of the Tribunal assessing the compensation payable in accordance with the accepted principles of law, there is no need to interfere with the same. The Tribunal calculated the loss of future earnings on the basis of permanent partial disability proved before the Tribunal on a reasonable assessment of her monthly income as labourer. In fact, the compensation was reduced to the amount claimed though she was found entitled to more on calculation. The vicarious liability of the owner of the jeep for the tortious conduct of his driver also cannot be in dispute. The only question that remains is the liability of the insurer of the jeep in terms of the policy of insurance. Ex.B.1 is the xerox copy of the insurance policy, which does not disclose payment of any premium for the fare-paid passengers travelling in the vehicle. While the injured claimant was admittedly travelling in the jeep as a passenger, in the absence of payment of any premium to cover such passenger under the insurance policy, the insurer cannot be fastened with any liability for compensation for the injuries suffered by her while travelling in the jeep being involved in the accident. Therefore, the award to the extent of the liability imposed on the insurer for 50% of the compensation awarded should be set aside. However, it is seen from the record that the interim orders of this Court, dated 05-11-2003 made the appellant deposit the entire decretal amount with interest and costs and by virtue of the order, dated 22-06-2006, the claimant was permitted to withdraw half of the deposited amount without any security, while the balance was directed to be kept in fixed deposit in any nationalized bank. To the extent of the amount permitted to be withdrawn by the claimant, the principle of ‘pay and recover’ should be made applicable without referring the insurer to any separate suit or other legal proceeding entitling it to recover the same from the owner of the jeep. Accordingly, the appeal is allowed without costs and the award, dated 27-09-2002 in O.P. No.626 of 1997 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nizamabad is set aside against the appellant and the said O.P. No.626 of 1997 is dismissed without costs against the appellant/2nd respondent therein. The appellant/2nd respondent in O.P. No.626 of 1997 is entitled to recover the amount withdrawn by the claimant in pursuance of the orders of this Court from the 1st respondent to O.P. No.626 of 1997 without the necessity of taking recourse to any separate suit or other legal proceedings. _____________________ G. BHAVANI PRASAD, J Date: 09-02-2011 Svv