HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.2838 OF 2000 Dated: 27.04.2010 BETWEEN: V.Raja Reddy .. Appellant And T.Venkata Subba Rao and aother .. Respondents *HON’BLE SRI JUSTICE R. KANTHA RAO +C.M.A.NO.2838 OF 2000 %Dated: 27.04.2010 BETWEEN: #V.Raja Reddy .. Appellant And $T.Venkata Subba Rao and another .. Respondents !Counsel for the Appellant: Mr T.S.Anand ^ Counsel for the Respondent : Mr V.Srinivasa Rao <GIST: > HEAD NOTE: ? Cases HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.2838 OF 2000 JUDGMENT: This appeal is filed by the injured claimant challenging the order, dated 14.08.1997 passed by the Motor Accident Claims Trifbunal-cum-IV Additional District Judge, Chittoor at Tirupathi in M.V.O.P.No.251 of 1993. 2. I have heard the learned counsel appearing for the appellant- claimant and the learned counsel appearing for the respondent No.2-insurance company. 3. A short question requires consideration in this appeal is when the claim petition filed by the appellant under Section 166 of the Motor Vehicles Act seeking compensation in respect of the injuries sustained by him is dismissed against the owner of the offending vehicle, which was admittedly insured with the insurance company, whether the insurance company can be fastened with any liability to pay compensation? 4. The learned Tribunal recorded a categorical finding that the accident was caused on account of the rash and negligent driving of the lorry bearing No.AP 37 T 1679 and when it hit the appellant at bout 3.45 AM on 18.11.1992 near Gangamma Temple Circle, Tirupati. This finding is recorded basing on the evidence forthcoming before the learned Tribunal. 5. It is the contention of the learned counsel appearing for the appellant that since there is a finding by the learned Tribunal that the accident was caused due to rash and negligent driving of the lorry bearing No. AP 37 T 1679 by its driver and the said fact cannot be disputed by the insurance company in this appeal, it is no longer open for the insurance company to contend that unless the liability is fixed on the owner of the offending vehicle, it cannot be asked to indemnify the owner. In support of his contention reliance is placed on A.ROBERT v UNITED INSURANCE COM. LTD[1] wherein the Hon’ble Supreme Court in a situation where initially an award was passed by the Tribunal in favour of the claimant and against the owner and the insurer and thereafter in an appeal filed by the claimants seeking enhancement of compensation and the owner of the lorry was not added as party to the appeal, held that the question of negligence of the lorry driver is no longer open for consideration in the appeal by the claimant and the Insurance Company also cannot have anything to say on this aspect. Therefore, proceeding on the basis that the accident was caused by rash and negligent driving of the driver of the offending lorry, the Apex Court was of the view the only question to be determined is as to what is the appropriate compensation which could be awarded to the appellant and the insurance company is liable to pay compensation. 6. The above judgment, in my view is not applicable to the facts of the present case since the issue considered by the Supreme Court was when there is initially an award passed in favour of the claimant and against the owner and insurer of the offending vehicle holding them jointly and severally liable for compensation, thereafter in the appeal filed by the claimant seeking enhancement of compensation, even though, the appeal is dismissed against the owner of the vehicle for not paying process fee, the appeal survives against the insurance company. The situation in the present case is altogether different. In the present case, the Tribunal itself dismissed the claim against the owner of the vehicle for not paying process fee against him and in consequence thereof exonerated the insurance company form its liability to pay compensation on the ground that without fixing liability on the owner of the vehicle, the insurance company cannot be asked to indemnify the owner so as to pay compensation to the claimant. 7. On the other hand, the learned standing counsel for the insurance company relied on a decision in ORIENTAL INSURANCE CO. TD. V SUNITA RATHI AND OTHERS[2] wherein a three Judge Bench of Hon’ble Supreme Court had dealt with the issue directly. It has been categorically held in para 3 of the judgment as follows: “It follows that the insurer cannot be held liable on the basis of the above policy in the present case and therefore, the liability has to be of the owner of the vehicle. However, we find that the High Court without assigning any reason, has simply assumed that the owner of the vehicle was not liable and that the insurer alone was liable in the present case. This conclusion, reached by the High Court, is clearly erroneous. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is, thus, a basic fallacy in the conclusion reached by the High Court on this point.” 8. In the instant case since the accident took place in the year 1992 and the appeal is being disposed of in the year 2010, I do not consider it appropriate to afford any opportunity to the appellant- claimant to take steps against the owner of the vehicle at this stage, in which event the owner as well as the insurance company will be subjected to, much hardship and inconvenience. Therefore, following the ratio laid down by the Hon’ble Supreme Court in the decision 2nd cited (ORIENTAL INSURANCE CO.LTD) I hold that the learned Tribunal below is perfectly justified in dismissing the claim petition filed by the appellant holding that without fixing any liability on the owner of the vehicle, the insurance company cannot be fastened with any liability to pay compensation. 9. Therefore, the appeal fails and is dismissed. There shall be no order as to costs. _______________ R.KANTHA RAO,J Dated: 27.04.2010 Note: L.R. copy to be marked b/o kvrm [1] AIR 1999 SC 2977 [2] 1998 ACJ 121