B KOTESWARA RAO Vs. P VEERANNA

JUDGEMENT

(1.) This is an appeal preferred jointly by the owner of the vehicle as also the Insurance Company questioning an award of Rs. 37,500/-made by the Court of Additional District Judge-cum-Additional Motor Accidents Claims Tribunal, Krishna. The accident occurred on 21-4- 1981 at Vijayawada and the respondent who was injured suffered a fracture on his left ankle. The respondent underwent treatment at Vijayawada and also at Madras, but he was, however, left with a permanent disability as he has to limp. On account of the said disability, the responden who was a photographer by profession, suffered detriment and claimed damages. The respondent has a photo studio called Veeranna Studio at Vijayawada with a branch at Madras. It is stated that the studio is also engaged in producing documentary films for private and Government institutions which are exhibited in the cinema and the TV. The respondent claimed a sum of Rs. 74,000/- as compensation and the Tribunal below awarded a sum of Rs. 37,500/-. Against the said award, the owner of the bus as well as the Insurance company have preferred this appeal jointly.

(2.) A preliminary objection has been raised by Sri AV. Parthasarathy for Sri Y.B. Tata Rao contending that a single appeal by the Insurance company as well as the owner of the vehicle is not maintainable inasmuch as the defences open to each of these appellants are different. For the above said purpose, reliance is placed upon a judgment of A Division Bench of the Allahabad High Court in United India F. & G.J. Co. Ltd., Kanpur vs. Gulab Chandra 1. The learned Judges therein held that inasmuch as under Section 96 (2) of the MOTOR VEHICLES ACT, 1988 read with Section 110-D, the grounds of defence available to the Insurance company are different from the grounds available to the owner of the vehicle, the appeal is not maintainable jointly by both of them. The learned Judges have furthere held that it the decree does rot make the owner of the vehicle to pay he cannot be treated as a 'person aggrieved' within the meaning of Section 110-D of the Act. This preliminary objection is resisted by the learned counsel for the appellants, Sri SVRS Somayajulu.

(3.) I am of the view that the preliminary objection is not correct and that this appeal jointly preferred by the Insurance Company as well as by the owner of the vehicle is maintainable. The Insurance Company is only in the position of an indemnifier to the owner of the vehicle. Unless the owner of the vehicle is made liable, the insurer, being an indemnitier, cannot be made liable. I fail to see how the person primarily liable as well as the person who indemnifies him cannot be said to be 'aggrieved person at the same time and, if so, why they cannot join together in single appeal. It may be that the defences open to the indemnifier are statutorily restricted from those available to the person principally liable but that does not mean that there are any conflicting or opposing interests between them. Under the MOTOR VEHICLES ACT, 1988, provision is made to recover the amount from the Insurance. Company upto a particular limit and beyond that, the amount can be recovered from the owner of the vehicle. If the injured person is not able to recover any part of the amount from the Insurance Company (for some good reason), he can certainly recover it from the owner of the vehicle. The alternative argument that the owner of the vehicle is not an 'aggrieved person' at all because his liability is taken over by the Insurance Company is not correct. It will be anomalous to say that the person mainly liable is not an 'aggrieved person' merely because the amount is not initially recoverable from him. Even in a case where the quantum of liability of the Insurance Company exceeds the total amount claimed by the injured person the position, in my opinion, is not different. The interse relationship of 'indemnifier' and 'indemnified' continues and there is no conflicting interest. Further it may also be the duty of the owner of the vehicle to protect the interests of the 'indemnifier' and see that the latter is not necessarily mulcted with liability. Merely because the claim in the case is less than the limits applicable to the indemnifier, the owner of the vehicle need not feel absolved of his liability to safeguard the interests of the indemnifier. The mere fact that certain defences open to the owner of the vehicle are not open to the Insurance Company does not make any difference.