NATIONAL INSURANCE CO LTD Vs. B VENKATAMMA

JUDGEMENT

(1.) These appeals arise out of the awards of the Motor Accident Claims Tribunal, Ongole in OP.Nos. 154/88, 155/88, 167/88, 153/88 in regard to a motor vehicle accident that occurred on 17-3-1988. All are death claim cases filed under Section 110-A of the M.V. Act, 1939 (for short, the Act). The claimants are the legal heirs of the deceased persons respectively viz., Pedda Pothanna, Katte Ankulu, B. Lakshmaiah and Pedda Petanna. The lorry bearing No. ABG 4219 was involved in the accident. The lorry belonged to the 1st respondent and insured with the 2nd respondent under a policy of insurance, the certified copy of which is Ex.B-1. Ex.B-2 is the copy of the permit in regard to the vehicle involved in the accident. The Tribunal held that the accident was due to the rash and negligent driving of the lorry by its driver and that the 1st respondent was liable to pay the compensation and at the same (time) held that the 2nd respondent being the insurer is also liable to indemnify the 1st respondent in paying the compensation. The Tribunal fixed joint and several liability on the part of the respondents. Aggrieved by that the 2nd respondent/insurer has filed these appeals.

(2.) The 2nd respondent insurer in all the appeals raised the contention that as the terms of the policy and the permit were breached it had no liability to pay the compensation. Mr. Hanumaiah, the learned Standing Counsel for the appellant/insurer in these cases has contended that the defence of the insurer in these cases is not merely the breach of the terms of the policy but basically one of questioning the coverage of insurance in regard to the persons who died in the accident or the persons who were the victims of the accident. According to him Ex.B-1 categorically excludes such a risk under the policy in regard to such persons travelling in the lorry at the relevant time. He has also pointed out that when the number of persons who could travel in the lorry was restricted as per the permit Ex.B-2, the driver of the lorry carried number of persons over and above the said number leading to the accident. The learned Standing Counsel has also contended that the Tribunal instead of relying upon several precedents including one of our own High Court has come to a wrong conclusion in applying the principles of law to the admitted and proved facts in this case.

(3.) Mr. Venkateswara Reddy, the learned Counsel for the 1st respondent/ owner in all the claim petitions has contended that the question in these cases is not one of the coverage of the insurance policy nor the breach of the terms of the policy, but one of the statutory liability on the part of the insurer to indemnify the 1st respondent/owner of the vehicle when once it has been established that the vehicle had been insured with the particular insurer which has been established through the copy of the policy Ex.B-1 and the settled law that it is for the insured (sic. insurer) to establish that there has been a breach of the terms of the policy by the insured-owner of the vehicle in regard to the vehicle, but not the driver as it has happened in this case, even assuming that the driver out-stepped the implied or express authority in carrying the persons in the lorry and according to him as per settled law the insurer in these cases could not have avoided the liability to indemnify the owner to pay the compensation.