IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE THIRTIETH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CMA.NO. 3757 OF 2002 Between: National Insurance Co. Ltd. Kurnool … Appellant V/s. P. Ramesh Babu & Anr. … Respondents Counsel for the appellant : Sri Ch. Srinivas Counsel for the Respondents: Sri A.Jayashankar Reddy THE HONOURABLE SRI JUSTICE B.N.RAO NALLA CMA.NO. 3757 OF 2002. J U D G M E N T : This Civil Miscellaneous Appeal is filed by the National Insurance Company Limited, Kurnool, against the award and decree dated 27-2-2002 passed in MVOP.No. 496 of 1998 by the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Kurnool, whereby and whereunder an amount of Rs.39,000/- was awarded with interest @ 9% per annum in favour of the first respondent-claimant. 2. The facts in brief are that on 13-12-1997 at about 10:00 p.m., the injured was traveling by a mini lorry bearing Regdn.No. AP-21/T- 0927 to reach Nandikotkur from Bangalore. By the time when the said vehicle reached near Nagasamudram Railway gate, the driver of the mini lorry drove the same in a rash and negligent manner at high speed and dashed the lorry bearing No. AAA-9977 coming in opposite direction. The Police CK Palli registered a case in Cr.No.72 of 1997. As a result, the first respondent sustained grievance fracture injury to his right leg. Therefore, he filed claim petition claiming compensation of Rs.1,50,000/- from the respondents. 3. The appellant-Insurance Company denied the averments made in the claim petition. 4. On the basis of the rival contentions, the Claims Tribunal framed relevant issues for trial. 5. The claimant himself examined as PW.1 and marked Exs. A- 1 to A-3. Ex.A1 is the certified copy of FIR in Cr.No.72/97 of Chennekothapalli Police Station, Ex.A2 is the certified copy of wound certificate and Ex.A3 is the certified copy of charge sheet in CC.No.63/98 on the file of the Court of Judicial Magistrate of First Class, Dharmavaram. On behalf of respondents, no witness was examined but Ex.B1 copy of Insurance policy was marked. 5. On appreciation of the oral and documentary evidence adduced, the Claims Tribunal gave a finding that as could be seen from the claim petition and also the contents of FIR and charge sheet, the aforesaid mini lorry dashed against the lorry bearing No.AAA- 9977 which was coming in opposite direction and thus there was head-on-collision between the two vehicles. The fact is that the mini lorry driver was prosecuted. It shows that there was major part of contributory negligence on the part of driver of the mini lorry and lesser part on the part of the driver of lorry bearing No.AAA-9977 towards the accident and thus the Claims Tribunal apportioned the fault of both the drivers at 75% and 25% respectively. 6. The Claims Tribunal awarded Rs.15,000/- to each of the two fracture injuries, Rs.5000/- towards medical expenses, Rs.2000/- towards transport charges and Rs.15,000/- towards pain and suffering. Thus awarded a total compensation of Rs.52,000/- and apportioned the same as per the percentage of negligence i.e., 75% and 25%. Since the mini lorry driver contributed 75% negligence for causing accident, accordingly the amount was reduced to Rs.39,000/- and the same was awarded to the first respondent- claimant with interest @ 9% per annum. 7. The learned counsel for the appellant-Insurance submits that the only point involves in this appeal is that the Claims Tribunal had awarded compensation of Rs.39,000/- to the first respondent-claimant basing on a decision reported in New India Assurance Company V/s. Sri Satpal Singh & Ors [1]., wherein it was held to the effect that under the new Act, the Insurance policy covering the third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type orclass . The learned counsel further contends that since the said decision of Satpal Singh was over ruled by the decision in BALJIT KAUR V/s. NEW INDIA ASSURANCE COMPANY[2]. Therefore, he contends that the Claims Tribunal is in error in allowing the claim petition and the same is liable to be set aside. He also relied on another decision in NEW INDIA ASSURANCE COMPANY V/s. ASHA RANI AND ORS [3]. 8. On the other hand, the learned counsel for the respondent- claimant submitted that if this appellate court, considering the fact that Satpal Singh’s case was over ruled in Asha Rani’s case and if the appeal of the Insurance Company is allowed, it may direct the Insurance Company to proceed against the owner of the vehicle to the extent of the amount already received by the claimant and the claimant is not liable to repay the amount to the Insurance Company and the remaining amount of compensation can be recovered from the owner of the vehicle. 9. The submissions made by the learned counsel for the respondent-claimant are, of course, quite reasonable and the same are worth following in similar facts and circumstances. Since the appellant is the insurance company herein and since the respondent- claimant has already withdrawn an amount of Rs.10,000/- out of the amount deposited by the insurance company in pursuance of the order of this court dated 24-12-2002 in CMA.MP.No. 24727 of 2007, he is not liable to repay the said amount to the insurance company. Further, the insurance company cannot avoid its liability to pay the remaining balance amount of the compensation to the respondent- claimant. However, it is open to the appellant-insurance company to proceed against the owner of the accident vehicle and recover the same from him, if it is so advised. 10. With the above observation, the appeal stands dismissed. No costs. ____________________ JUSTICE B.N.RAO NALLA 30/07/2010 I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CMA.NO. 3757 OF 2002 30-7-2010 I s L [1] 2000 (1) SCC-237 [2] ) 2004 (1) ALD-98 [3] ) 2003 (2) SCC-223