NEW INDIA ASSURANCE CO. LTD Vs. SIDDARAPU GANGAIAH

JUDGEMENT

(1.) THIS common judgment disposes of M.A.C.M.A. No.3250 of 2011 as well as M.A.C.M.A(SR).No.31192 of 2012. M.A.C.M.A.No.3250 of 2011 is laid by the

(2.) ND respondent in M.V.O.P.No.771 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal cum III Additional District Judge (Fast Track Court), Rajampet, Kadapa District (the Tribunal, for short). The claimants 2 to 4 therein preferred M.A.C.M.A(SR). No.31192 of 2012. The 1st claimant died during the pendency of M.V.O.P.No.771 of 2008 itself. Compensation at Rs.3,35,000/- together with interest at 6% per annum from the date of the petition till deposit was granted by the Tribunal as payable to the claimants 2 to 4. Contending that the calculation in awarding compensation was incorrect, the claimants filed M.A.C.M.A(SR).No.31192 of 2012. Claiming that the 2nd respondent-insurer is not liable since the driver of the offending tractor violated the terms and conditions of the policy, the insurer preferred M.A.C.M.A.No.3250 of 2011. 2. The 1st claimant was the husband of the deceased Ramalakshumma. The claimants 2 to 4 are the children of the 1st claimant and the deceased. The deceased was statedly an agricultural labourer. She was allegedly earning Rs.4,000/- per month. On 15-4-2008, while the deceased was returning home along with the

(3.) SMT . A.Jayanthi, learned Standing Counsel for the insurer, contended that the driver of the tractor is not liable to answer the claim. The learned counsel for the claimants submitted that even if there was any violation of the terms and conditions of the policy such as that the driver did not hold valid and effective driving licence, nevertheless the insurer would be answerable at the outset and may recover the amount paid by it from the owner of the tractor subsequently. She has placed reliance upon the famous National Insurance Co. Ltd. v. Swaran Singh; 2004) 3 SCC 297 in support of her contention. The Supreme Court directed the insurer to pay and then recover the amount paid from the owner of the vehicle in that case in the event the insurer was not otherwise liable. However, the Supreme Court clarified that the order was passed under Article 142 of the Constitution of India and that the order of 'pay and recover' should not be treated as a precedent. But, in a recent decision in Jayaprakash Agarwal v. Mohd. Kaleemulla; 2012 (3) ALT 494, a learned single Judge of this Court exhaustively examined the march of law regarding the pay and recovery procedure and directed that the insurer shall first pay the amount to the claimants and initiate separate proceedings against the owner of the vehicle for recovery of the said amount.