Bajaj Allianz General Insurance Company Vs. Gandam Somulamma and 6 Othe

Decided On : Jan-21-2014

Court : Andhra Pradesh

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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		'Judgement' => array(
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			'appellant' => 'Bajaj Allianz General Insurance Company',
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			'casename' => 'Bajaj Allianz General Insurance Company Vs. Gandam Somulamma and 6 Othe',
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			'judge' => 'HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO',
			'judgement' => '<p>HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF201221-01-2014 Bajaj Allianz General Insurance Company Ltd., Rep. by its General Manager, VIP Road, CBM Compound, Visakhapatnam. ...APPELLANT Gandam Somulamma &amp; 6 others ...RESPONDENTS Counsel for Appellant: Sri T.Mahender Rao Counsel for Respondent Nos.1 to 5 : M/s Rama Pallapothu HEAD NOTE: ?.Cases referred 1.2008 (1) LS-SC-177 2.1965 (1) All. E.R-563 3.1963 (2) All.E.R-432 4.1969 (1) All.E.R-555 5.1995 ACJ366(SC) 6.2013 ACJ1403= (4) ALT35(SC) 7.2009 ACJ12988.2003 ACJ129.2011 (8) Scale 240 10.2006 ACJ139811.2003 (9) SCC60612.AIR2009SC20813.2004 (3) SCC297- 2004-ACJ-1 14.2006 (4) SCC25015.2004 (13) SCC224= 2004-SAR (Civil) 290 16.2007 (10) SCC650= 2007 (4) Scale 292 17.2008 (1) LS-SC-177 18.1997 (7) SCC-558 19.2007 (13) SCC24620.2008 (1) Scale 531 21.2008 (1) Scale 727 22.2008 ACJ65423.JT-2003 (2) SC-595 =2003-ACJ-611=2003-ACT-611(SC) 24.2008-ACJ-1498 25.AIR2007SC197126. Appeal (Civil) C.C. No.10993 of 2009 27.2010 (5) ALT10528.2005 (4) ACJ72129.AIR2011SC1234= 2011 (2) SCJ63930.2013 (7) SCC62HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF2012</p>JUDGMENT<p>: The 3rd respondent to the claim petition is no other than the insurer of crime auto (bearing No.AP16Y6612 of 2nd respondent driven by 1st respondent, having been aggrieved by the award of the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (FTC), Krishna District, at Machilipatnam (for short, 'Tribunal') in M.V.O.P.No.458 of 2008 dated 21.02.2012, awarded compensation of Rs.3,00,000/- (Rupees three lakhs only) as prayed for with interest at the rate of 7 1/2% per annum against the respondents 2 and 3 who are owner and insurer with joint and several liability, filed the appeal seeking to set aside the finding of the tribunal and exempt the insurer - respondent No.3 from the liability saying the respondent No.2 owner of the vehicle is only liable for paying the compensation.</p><p>2. Heard Sri T.Mahender Rao, learned counsel for the appellant. The respondents 6 and 7 herein who are the respondent Nos.1 and 2 to the claim petition (driver and owner of the auto), were served with notice are called absent with no representation. The respondent Nos.1 to 5 herein who are the claimants in the claim petition represented by their advocate M/s.Rama Pallapothu.</p><p>3. In fact the counsel for the said claimants having submitted earlier that for this Court while sitting in appeal there is nothing to interfere, taken time to submit further arguments to dated 09.12.2013 from 06.12.2013 and did not appear later even the matter was again posted to 12.12.2013. Hence taken as heard the respondent Nos.6 and 7 and further arguments of the respondent Nos.1 to 5. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal. 3(a). The contentions in the grounds of appeal as well as oral submission during the hearing in nutshell of the insurer are that the tribunal is erred in its finding at para No.23 fastening joint liability despite the auto with seating capacity of 1+3 passengers was overloaded with as many as 12 passengers other than driver and from the fact that the 1st respondent-driver not at all possessed driving license and he so deposed having been examined RW.3 at the instance of the insurer after the evidence of RW.2 owner of the vehicle with a version he has gone through the Xerox copy of driving license of the 1st respondent and permitted to drive and furnished said Xerox copy to the insurer and not having any copy with him to file. The driver as RW.3 categorically deposed that he has not having any driving license and he did not apply and he did not give any copy of such license to owner. It is the further contention that the tribunal went wrong in saying that it is the onus of the insurer further to examine the RTO authorities concerned in proof of respondent No.1- driver has no driving license, as such the respondent did not discharge the burden, thereby in holding the insurer also liable. It is also the contention that from the factual matrix even it is proved, said finding of the tribunal is contrary to law, weight of evidence, probabilities of the case and erroneous outcome in fixing liability on the respondent No.3-insurer despite proved violation to the terms of the policy saying for non examination of RTO concerned without looking into what more left even from driver deposed and thereby the award of the tribunal is sought to be set aside and the insurer is to be exonerated particularly by relying upon Sardari vs. Sushilkumar1. On the facts from the tractor driver admitted that no license ever possessed and does not know how to drive the tractor that caused the accident that held exonerated the insurer from the breach of Section 3 of the A.P. Motor Vehicles Act in entrusting the vehicle to a driver without no license by the owner. It is also contended that awarding of Rs.3,00,000/- as prayed for with interest at 7 1/2% per annum is also on high side and hence sought to fix the compensation lower to it justly and reasonably without liability on the insurer.</p><p>4. Now the points that arise for consideration in the appeal are:</p><p>1. Whether the compensation awarded by the Tribunal only against the owner by exempting the insurer from the liability is unsustainable and the quantum of compensation awarded is also not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?.</p><p>2. To what result?. POINT-1:</p><p>5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 01.08.2007 the deceased went to Guduru to attend coolie work and after completion of the work, he was while returning to Bandar in the crime auto bearing No.AP16 6612, when the auto reached at Chittigudur Village at 4.30 pm due to the 1st respondent who is the driver of the crime auto, drove in a rash and negligent manner in high speed and lost control over the auto, it turned turtle in which accident the deceased and other occupants of the auto sustained grievous injuries. Immediately, the deceased was shifted to Government Hospital, Machilipatnam and while undergoing treatment he was succumbed to the injuries on 04.09.2007 at 5.10 pm. The Sub-Inspector of the Police, Gurudu Police at the first instance, basing on the statement of deceased, registered a case in Crime No.69 of 2007 under Section 337 and 338 IPC against the 1st respondent-driver and later altered the section of law on receipt of death intimation of the deceased by adding 304 -A IPC against the driver of crime auto which occurrence is also proved from Ex.A1 FIR, Ex.A4 M.V.I report and Ex.A6 charge sheet and evidence of P.W.1 as concluded by the tribunal. The tribunal ultimately concluded that the claim petition is to be allowed by awarding full compensation of Rs.3,00,000/- as prayed for with interest at the rate of 7 1/2% per annum from the date of filing of claim petition till realization with costs, directing the respondents 1 to 3 i.e., driver, owner and insurer of the auto covered by Ex.B1 policy to deposit the compensation amount with interest thereon with costs within 30 days from the date of this award.</p><p>6. From the above factual matrix of case, the accident was the result of rash and negligent driving of the 1st respondent-driver of crime auto (bearing No.AP16Y6612 belongs to 2nd respondent-owner insured with 3rd respondent-insurance company proved. It also proved that the auto was overloading against the capacity of three passengers with 12 passengers as held by the Tribunal in para No.10. Thus there is nothing to interfere by sitting in appeal so far as rash and negligent driving but for a quantum of compensation and on liability of insurer.</p><p>7. Now coming to the quantum of compensation under dispute concerned before coming to decide, what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James2, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what compensation would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and should neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly3 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver4 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi v. Pest Control (India) Private Limited5 at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.</p><p>8. In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh v. Rajbir Singh6 at paras-1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation7 and Nagappa v Gurudayal Singh8 that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. The expression 'just compensation' has been explained in Sarla Verma`s case (cited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just compensation' is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation.</p><p>9. From the above legal position, coming to the quantum of compensation concerned, there is no appeal or cross objections by the claimants who are respondent Nos.1 to 5 and thus though they claimed that the quantum is low and requires to increase, they are not entitled so to say from well settled expression of the Apex Court in Ranjane Prakash Vs. Divisional Manager9 following the earlier expressions in Oriental Insurance Company Limited V. R.Swaminathan10 at para No.5 by referring to the earlier expression in Benarsi Vs. Ram phaul11 that increasing of compensation amount to the claimants with no cross objections, beyond amount awarded by the Tribunal in the appeal filed by the Insurance Company does not arise.</p><p>10. Now coming to the compensation awarded of Rs.3,00,000/- whether on higher side concerned; the deceased was aged about 50 years and the income of the deceased taken by the tribunal is at Rs.3,000/- per month X12 Rs.36,000/- per annum, as the dependants are five in number; as per Sarla Verma's case besides the mutliplier applicable is 11, personal expenses of deceased to be taken is only 1/4th. Then it comes to Rs.2,97,000/-. In fact the prospective earning capacity to be taken to increase is 15% thereon from the age of the deceased about 50 years besides consortium to the wife of deceased Rs.1,00,000/-, Rs.25,000/- towards funeral expenses, Rs.5,000/- the minimum towards for loss of estate and for love care and guidance to the two minor children claimant Nos.4 and 5 even awarded Rs.20,000/- by following the three bench expression of Apex Court Rajesh (supra), the claimants are entitled to more than four and half lakhs, but for no cross objections to confirm the same with interest at the rate of 7 1/2% per annum. Thus, on the quantum of compensation and rate of interest for this Court while sitting in appeal there is nothing to interfere.</p><p>11. Now coming to decide whether the insurer can be exonerated from liability to indemnify the insured to the third party claimants for the driver not having any license besides overloading from which the accident resulted concerned: i) No doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala &amp; Others12, the two judge bench of the Apex Court in this decision by referring to National Insurance Company Limited Vs. Swaran Singh &amp; Others13 apart from other expressions in National Insurance Company Limited Vs. Kusum Rai &amp; Others14 and Oriental Insurance Company Limited Vs. Nanjappan &amp; Others15 and Ishwar Chandra &amp; Others Vs. Oriental Insurance Company Limited &amp; Others16 held that the insurer is not liable to indemnify the owner, when the driver has no license to drive the crime vehicle. ii) In Ishwar Chandra (supra) it was held by the two judge bench that the driver's license when expired 30 days prior to the date of accident and no renewal application filed even by date of accident to say a renewal dates back to date of application, it is suffice to hold the driver has no license as on date of accident. iii) In NIC Vs. Kusumrai (supra) it was held by the two judge bench that, the vehicle was used as taxi (commercial) and the driver is required to hold appropriate license but not having valid commercial vehicle license and from that breach, the insurer is held entitled to rise the defence. iv) In Sardari vs. Sushilkumar17- the facts show one Jageeru, Tonga driver on 10-2-85 met with accident when it colluded with tractor and he later was expired on 15-2-85 and the Insurance Company in the counter contended that the driver of the tractor did not hold valid and effective license and there is no liability to indemnify. In the course of trial, the said tractor driver Sushil Kumar categorically deposed that he does not know how to drive a tractor as he never even tried to learn driving tractor, that he had not been possessing any license to drive a tractor and he did not even apply for licence. It was therefrom, the Tribunal held that admittedly when the driver of crime tractor was not knowing to drive tractor and not even having any license at all to drive, the Insurance Company is not liable to indemnify owner of the tractor. The appeal was also dismissed confirming the said finding of the tribunal when preferred by driver and owner of the tractor for no appeal by claimants. In that factual context it was observed in para 6 of the judgment by the Supreme Court that, time and again made distinction between cases where III party is involved Vis--vis owner of the vehicle was involved. The object of Sections 147 &amp; 149 of the MV Act enacted was social justice doctrine envisaged in the preamble of the constitution, however, the Act itself provides where the insurance company can avoid its liability. The avoidance of such liability by insurer largely depends upon violation of conditions of the Insurance Contract. Where the breach is ex-facie apparent from the record, court need not fasten liability on the insurer. In certain situations, however, the court while fastening liability on insured, may direct the insurer to pay to the claimants and recover the same from the insured. v) In UIIC Vs. Gianchand18, it was observed that when the insured handed over the vehicle to an un-licensed driver, insurer would be exonerated from liability to meet III party claims. vi) In Swaran Singh (three judges bench-supra) it was laid down that the owner of the vehicle has a responsibility to see that no vehicle is driven except by a person who doesn't satisfy Sections 3 &amp; 4 of the MVAct. In a case where the driver admittedly did not hold license and the same was allowed consciously to be driven by the owner of the vehicle by such person insurer in its defence succeed to avoid liability. The matter, however, may be different where a disputed question of fact arises as to driver had a license or owner committed a breach of the policy terms by consciously allowing a person to drive without having a valid driving license. vii) In NIAC Vs. Prabhulal19 it was a claim arisen out of Consumer District Forum holding no liability of the insurer against the National Consumer Commission's verdict fixing responsibility. viii) In Prem Kumari Vs. Prahlad Dev20 it was also observed that owner of the vehicle cannot contend no liability to verify the fact as to whether the driver possessed a valid license or not. ix) In OIC Vs. Prudhviraj21 on facts from the RTA record shows the driver was not having any driving license for the owner to permit the driver to drive the vehicle and for that accident not chosen to make liable the insurer. x) By referring all these expressions at Para 9 of the Judgment of the Apex Court in Saradari (supra), the Apex Court did not choose to interfere with the finding of the tribunal confirmed by the High Court, in not chosen to make liable the insurer. xi) In Surina Durvasulu Vs. Bhavanarayana Murthy22 Para 14 it was held that when the driver had no valid driving license to drive tractor and the charge sheet also mentions a penal provision for violation of the same in driving with no license and nothing deposed by owner despite contention of Insurance Company, that he has taken all necessary precautions to entrust the vehicle to a person who had valid driving license, insurance company not made liable holds good. xii) It is clear from the decisions that once there is material to say conscious knowledge of owner of defective or no license of driver, insurer need not be made liable. In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the law in this regard referring to United Insurance Co. Ltd Vs. Lehru23 among others and the principle laid down therein was approved and reiterated even in the subsequent decisions including the above but for distinguishing for the facts on hand in each of the cases as held by the Apex Court in NIC Vs. Geetabhat24 that the principle is the same but for any deviation from factual matrix of each case if at all to say non- liability. xiii) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan (supra), Geetabhat (supra) and several other expressions in the cases relating to no license at all or imperfect and no valid license held that even it is one of breach of terms of policy and violation of rules, since the policy otherwise covers risk, though denied liability from no valid license, in the absence of showing such violation is to the conscious knowledge of insured-owner, insurer is to pay and recover. xiv) Even in Geetabhat (supra) it was held reiterating the principle laid down in the above decisions after referring the above among other several decisions that when insurer seeks to avoid liability on ground of fake or no license of driver of the vehicle of the insurer, but for saying no license issued by RTO in name of the driver, even taken alleged license as fake, insurer has to pay to the third party claimants and recover from insured. xv) In fact, in Swaran Singh's case (supra), the Apex Court observed that it is the obligation on the part of owner to take equitable care to see that the driver had an appropriate license to drive the vehicle. The question as regards the liability of owner vis--vis the driver being not possessed of a valid license concerned, at para-89, it was observed that Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of this Section. The various types of vehicles described for which a driver may obtain a license for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. xvi) Furthermore, in Oriental Insurance Company Limited Vs. Brij Mohan &amp; Others25 while holding that insurance company has no liability, however, invoked Article 142 and 136 of the Constitution in directing the insurer to pay first and recover from the tractor owner. It was in fact on a close reading discloses not a mere case of exercise of exclusive jurisdiction of the Apex Court from the fact that it contains the general observation that interest of justice would be sub-served in giving such a direction to pay and recover having regard to the scope and purport of Section 168 of the MV Act,1988. xvii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni &amp; Another26, the Apex Court doubted the correctness of the directions issued in various judgments to the insurer to pay even though not liable and therefrom formulated issues for consideration by a larger bench xviii) In fact, by referring to the above expression in Swaran Singh's case (supra), this (Andhra Pradesh) Court in an appeal by insurance company, observed in New India Assurance Company Limited, Tirupati, Vs. G.Sampoorna &amp; Others27 from paras-6 onwards that insurer raised the contention of driver was not having valid license at the time of accident and examined employee of Regional Transport Office, besides employee of the insurance company and the owner of the vehicle did not speak anything. No evidence produced by claimants to show that there was a license or it was even if lapsed renewed later. However, the Tribunal held that even in the absence of driving license, insurance company has to pay and recover rather than escaping from liability for the claimants are not parties to the contract of insurance of the vehicle between insurer and insured. xix) This (High) Court therefrom held that the conclusion is not acceptable from reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala' case (supra) in saying the statute itself excludes insurer's liability in such a case, thereby the fact whether the claimant being a third party is not a privy to the policy between insurer and insured has no relevance. It is however, by referring to the Swaran Singh (supra) apart from the earlier expressions referred therein, observed that the proposition laid down in Swaran Singh (supra) is referred to a larger bench and it is still pending. In Swaran Singh (supra) it was held that the Tribunals and the Courts in exercise of their jurisdiction to issue any direction for pay and recovery, consider, depending upon facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance under Section 149(2)(a)(ii) of the Act, the insurance company shall be entitled to realise the award amount from owner or driver, as the case may be, in execution of the same award in view of Sections 165 and 168 of the Act. xx) It is from this, this Court in Sampoorna (supra) from para-13 onwards observed that &quot;.In my opinion from the afore-extracted passage of the judgment, it is evident that direction to the insurance company to pay the compensation does not automatically follow in every case where the insurance company is found not liable. The same depends upon the fats and circumstances of each case. In all the aforementioned cases, which were referred to by the Supreme Court, directions were given on the facts of each case and considered the fact that the provisions of the Act dealing with insurance and payment of compensation are beneficial in nature&quot;.. In paragraph 81 of Swaran Singh (supra), it was observed that right to avoid liability in terms of Section 149(2) is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence; but it is another thing to say that despite the fact that its defence has been accepted, having regard to facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. xxi) The Supreme Court in subsequent judgments have not treated the previous judgments including Swaran Singh (supra) as laying down unexceptionable principle that in every claim brought before the Tribunal, the insurance company should be directed to pay compensation amount first even though its defence was found accepted, as evident from some of the later expressions like in National Insurance Company Limited Vs. Bommithi Subbhayamma &amp; Others28. xxii) By referring to the above, from paragraph 20, this (High) Court in Sampoorna (supra) observed that on the strength of the discussion undertaken above, it is not possible for this Court to treat the judgment in Swaran Singh (supra) as containing mandatory directions to Tribunals and Courts to invariably direct the insurer to pay at first instance and recover from owner of the vehicle even though they are held not liable. Pending resolution of the issues by the larger bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (supra) as leaving discretion to the Tribunals and the Courts to give appropriate directions depending upon facts and circumstances of each case. xxiii) By applying the ratio in Swaran Singh (supra) at para-21 of the judgment, this (High) Court held that some amount that was already deposited by the insurance company, which holds good to withdraw, and for the rest, insurance company is not liable. In fact besides Lehru (supra), Swaran Singh's (supra) and Nanjappan (supra) in holding that from lack of license or fake license or imperfect or defective license, in the absence of proof of conscious knowledge of owner, the insurer can be ordered firstly to satisfy the claimants by indemnifying the owner and then recover from owner and driver; i) Even in the subsequent expressions of the Apex Court in Kusumlatha and others V. Satbir and Others29 it was held that the Tribunal has got inherent power to issue such directions to insurer to pay and recover. ii) Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company30 a two judge bench of the Apex Court held that even though the insurer has taken the defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licensed in during the crime vehicle when met with accident, third party has a statutory right to recover compensation from insurer and it was for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any breach of condition of Insurance policy.</p><p>13. From the above legal propositions in the factual matrix of the case and from the contentions of the insurer-appellant, RW.2 owner though deposed that he verified from xerox copy supplied by the R.1 - RW3 of the license possessed by him found he got license and he handed over the same to the insurer. However to believe his version, he did not file such a Xerox copy, if at all, any copy he received and given copy of it to the insurer and in the absence of which, the claimant whatever copy he received from the driver handed over to the insurer and not possessed copy of it to file is unbelievable but for to say apparently an introduced version to get over from liability if possible by such a say in coming to the witness box as if he entrusted with no conscious knowledge of no license to the driver. Here from the expressions of Swaran Singh's (supra), Lehru (supra) apart from the later decision in Nanjappan shows the knowledge of the owner is one of the pre requisites in exercising of judicial discretion by the Tribunal or no interference with any finding of the tribunal by appellate or revisional authority by sitting against. Here the version of the owner as RW.2 of there is no conscious knowledge of the respondent No.1 has no driving license is also belied by the evidence of driver R1 as RW.3 by coming to the witness box that he never informed of possessed any driving license for driving the transport LMV crime auto. When such is the case and when he deposed that he did not hand over any license to the R.2 owner from not possessed any driving license; the question of handing over any license and its perusal, much less to hand over to insurer by insured does not arise. Thus, even no RTO was examined other than the driver, which is when suffice to say conscious knowledge of owner, the burden of the insurer is discharged. Further, the insurer in discharge of the burden even issued notice to the owner that is marked. Ex.B4 to Ex.B8 are the copy of the legal notice with receipt, notices issued to the advocate for the owner before the trial Court to produce any copy of driving license. Thus, there is nothing remains for the tribunal to comment on non examination of RTO concerned to prove that the driver was not possessing any driving license. It is in fact to be kept in mind in appreciation of evidence that a positive evidence can be brought on record to prove or to disprove any fact or to say left not proved as envisaged by Section 3 of Evidence Act. However, coming to negative facts of no license by saying the driver has no license at all and the driver and owner failed to produce even notice given to them and the advocate of owner to produce; the question of summoning several RTOs or any particular RTO records of its jurisdiction to submit before the Court to show of no license in his name doesn't arise. There is when no license to R.1 driver, practically expecting of impossibility so to prove of no license by summoning records for that, but for to say adverse inference to draw against the owner from the facts on hand. Having regard to the above it establishes that he got conscious knowledge in entrusting vehicle to a driver with no license as proved from the factual matrix of the case to say that the insurer is not liable to say no other better case can be expected to say in entrusting vehicle to a driver by a person not possessed any license and come with a claim as if there is license instead of saying not having conscious knowledge of the fact. Accordingly, point 1 is answered. POINT -2:</p><p>14. Accordingly and in the result, the appeal is allowed while confirming the quantum of compensation of Rs.3,00,000/- with interest at the rate of 7.5% per annum, with proportionate costs; set aside the findings of the tribunal so far as the joint and several liability of the insurer to indemnify the insured; by holding that the insurer is not liable but for by permitting the claimants to withdraw half of the amount already in deposit made by the insurer (appellant) as per the order passed in M.A.C.M.A. M.P No.2921 of 2012 dated 08.06.2012, for the insurer to recover the same from the owner of the vehicle by filing execution proceedings before the tribunal and seek for direction to the RTA not to transfer registration of the vehicle unless already transferred and also for attachment of property of the owner/ insured for assurance of recovery. Rest of the amount due to the claimants be recovered from the owner of the vehicle (2nd respondent in claim petition). There is no order as to costs of the appeal.</p><p>15. Miscellaneous petitions, if any pending in this appeal, shall stand closed. _________________________ Dr. B. SIVA SANKARA RAO, J Date:</p><p>21. 01-2014',
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		(int) 20 => 'Vidhyadhar Mahariwala &amp',
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		(int) 27 => 'Prem Kumari Vs',
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		(int) 41 => 'Vidhyadhar Mahariwala'',
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		(int) 49 => 'Swaran Singh',
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		(int) 54 => 'V. Satbir',
		(int) 55 => 'Swaran Singh's',
		(int) 56 => 'Lehru',
		(int) 57 => 'B. SIVA'
	),
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		(int) 4 => '4) ACJ72129.AIR2011SC1234= 2011',
		(int) 5 => 'M.V.O.P.No.458 of 2008',
		(int) 6 => 'the 1st',
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		(int) 17 => 'para-13',
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		(int) 20 => '2012',
		(int) 21 => '01-2014'
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		(int) 1 => 'M/s.Rama Pallapothu.3',
		(int) 2 => 'Motor Accidents',
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		(int) 4 => 'Para 9',
		(int) 5 => 'Para 14',
		(int) 6 => 'nature&quot',
		(int) 7 => 'No.1'
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		(int) 1 => '10-2-85'
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		(int) 14 => 'first',
		(int) 15 => 'first',
		(int) 16 => 'first',
		(int) 17 => 'firstly',
		(int) 18 => 'third',
		(int) 19 => 'third',
		(int) 20 => '2nd'
	),
	'PERCENT' => array(
		(int) 0 => '7 1/2%',
		(int) 1 => '7 1/2%',
		(int) 2 => '7 1/2%',
		(int) 3 => '15%',
		(int) 4 => '7 1/2%',
		(int) 5 => '7.5%'
	),
	'TIME' => array(
		(int) 0 => '4.30 pm',
		(int) 1 => '04.09.2007',
		(int) 2 => '5.10 pm'
	),
	'NORP' => array(
		(int) 0 => 'Others13'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '1122811',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Bajaj Allianz General Insurance Company',
		'authreffered' => null,
		'casename' => 'Bajaj Allianz General Insurance Company Vs. Gandam Somulamma and 6 Othe',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2014-01-21',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO',
		'judgement' => '<p>HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF201221-01-2014 Bajaj Allianz General Insurance Company Ltd., Rep. by its General Manager, VIP Road, CBM Compound, Visakhapatnam. ...APPELLANT Gandam Somulamma &amp; 6 others ...RESPONDENTS Counsel for Appellant: Sri T.Mahender Rao Counsel for Respondent Nos.1 to 5 : M/s Rama Pallapothu HEAD NOTE: ?.Cases referred 1.2008 (1) LS-SC-177 2.1965 (1) All. E.R-563 3.1963 (2) All.E.R-432 4.1969 (1) All.E.R-555 5.1995 ACJ366(SC) 6.2013 ACJ1403= (4) ALT35(SC) 7.2009 ACJ12988.2003 ACJ129.2011 (8) Scale 240 10.2006 ACJ139811.2003 (9) SCC60612.AIR2009SC20813.2004 (3) SCC297- 2004-ACJ-1 14.2006 (4) SCC25015.2004 (13) SCC224= 2004-SAR (Civil) 290 16.2007 (10) SCC650= 2007 (4) Scale 292 17.2008 (1) LS-SC-177 18.1997 (7) SCC-558 19.2007 (13) SCC24620.2008 (1) Scale 531 21.2008 (1) Scale 727 22.2008 ACJ65423.JT-2003 (2) SC-595 =2003-ACJ-611=2003-ACT-611(SC) 24.2008-ACJ-1498 25.AIR2007SC197126. Appeal (Civil) C.C. No.10993 of 2009 27.2010 (5) ALT10528.2005 (4) ACJ72129.AIR2011SC1234= 2011 (2) SCJ63930.2013 (7) SCC62HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF2012</p>JUDGMENT<p>: The 3rd respondent to the claim petition is no other than the insurer of crime auto (bearing No.AP16Y6612 of 2nd respondent driven by 1st respondent, having been aggrieved by the award of the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (FTC), Krishna District, at Machilipatnam (for short, 'Tribunal') in M.V.O.P.No.458 of 2008 dated 21.02.2012, awarded compensation of Rs.3,00,000/- (Rupees three lakhs only) as prayed for with interest at the rate of 7 1/2% per annum against the respondents 2 and 3 who are owner and insurer with joint and several liability, filed the appeal seeking to set aside the finding of the tribunal and exempt the insurer - respondent No.3 from the liability saying the respondent No.2 owner of the vehicle is only liable for paying the compensation.</p><p>2. Heard Sri T.Mahender Rao, learned counsel for the appellant. The respondents 6 and 7 herein who are the respondent Nos.1 and 2 to the claim petition (driver and owner of the auto), were served with notice are called absent with no representation. The respondent Nos.1 to 5 herein who are the claimants in the claim petition represented by their advocate M/s.Rama Pallapothu.</p><p>3. In fact the counsel for the said claimants having submitted earlier that for this Court while sitting in appeal there is nothing to interfere, taken time to submit further arguments to dated 09.12.2013 from 06.12.2013 and did not appear later even the matter was again posted to 12.12.2013. Hence taken as heard the respondent Nos.6 and 7 and further arguments of the respondent Nos.1 to 5. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal. 3(a). The contentions in the grounds of appeal as well as oral submission during the hearing in nutshell of the insurer are that the tribunal is erred in its finding at para No.23 fastening joint liability despite the auto with seating capacity of 1+3 passengers was overloaded with as many as 12 passengers other than driver and from the fact that the 1st respondent-driver not at all possessed driving license and he so deposed having been examined RW.3 at the instance of the insurer after the evidence of RW.2 owner of the vehicle with a version he has gone through the Xerox copy of driving license of the 1st respondent and permitted to drive and furnished said Xerox copy to the insurer and not having any copy with him to file. The driver as RW.3 categorically deposed that he has not having any driving license and he did not apply and he did not give any copy of such license to owner. It is the further contention that the tribunal went wrong in saying that it is the onus of the insurer further to examine the RTO authorities concerned in proof of respondent No.1- driver has no driving license, as such the respondent did not discharge the burden, thereby in holding the insurer also liable. It is also the contention that from the factual matrix even it is proved, said finding of the tribunal is contrary to law, weight of evidence, probabilities of the case and erroneous outcome in fixing liability on the respondent No.3-insurer despite proved violation to the terms of the policy saying for non examination of RTO concerned without looking into what more left even from driver deposed and thereby the award of the tribunal is sought to be set aside and the insurer is to be exonerated particularly by relying upon Sardari vs. Sushilkumar1. On the facts from the tractor driver admitted that no license ever possessed and does not know how to drive the tractor that caused the accident that held exonerated the insurer from the breach of Section 3 of the A.P. Motor Vehicles Act in entrusting the vehicle to a driver without no license by the owner. It is also contended that awarding of Rs.3,00,000/- as prayed for with interest at 7 1/2% per annum is also on high side and hence sought to fix the compensation lower to it justly and reasonably without liability on the insurer.</p><p>4. Now the points that arise for consideration in the appeal are:</p><p>1. Whether the compensation awarded by the Tribunal only against the owner by exempting the insurer from the liability is unsustainable and the quantum of compensation awarded is also not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?.</p><p>2. To what result?. POINT-1:</p><p>5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 01.08.2007 the deceased went to Guduru to attend coolie work and after completion of the work, he was while returning to Bandar in the crime auto bearing No.AP16 6612, when the auto reached at Chittigudur Village at 4.30 pm due to the 1st respondent who is the driver of the crime auto, drove in a rash and negligent manner in high speed and lost control over the auto, it turned turtle in which accident the deceased and other occupants of the auto sustained grievous injuries. Immediately, the deceased was shifted to Government Hospital, Machilipatnam and while undergoing treatment he was succumbed to the injuries on 04.09.2007 at 5.10 pm. The Sub-Inspector of the Police, Gurudu Police at the first instance, basing on the statement of deceased, registered a case in Crime No.69 of 2007 under Section 337 and 338 IPC against the 1st respondent-driver and later altered the section of law on receipt of death intimation of the deceased by adding 304 -A IPC against the driver of crime auto which occurrence is also proved from Ex.A1 FIR, Ex.A4 M.V.I report and Ex.A6 charge sheet and evidence of P.W.1 as concluded by the tribunal. The tribunal ultimately concluded that the claim petition is to be allowed by awarding full compensation of Rs.3,00,000/- as prayed for with interest at the rate of 7 1/2% per annum from the date of filing of claim petition till realization with costs, directing the respondents 1 to 3 i.e., driver, owner and insurer of the auto covered by Ex.B1 policy to deposit the compensation amount with interest thereon with costs within 30 days from the date of this award.</p><p>6. From the above factual matrix of case, the accident was the result of rash and negligent driving of the 1st respondent-driver of crime auto (bearing No.AP16Y6612 belongs to 2nd respondent-owner insured with 3rd respondent-insurance company proved. It also proved that the auto was overloading against the capacity of three passengers with 12 passengers as held by the Tribunal in para No.10. Thus there is nothing to interfere by sitting in appeal so far as rash and negligent driving but for a quantum of compensation and on liability of insurer.</p><p>7. Now coming to the quantum of compensation under dispute concerned before coming to decide, what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James2, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what compensation would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and should neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly3 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver4 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi v. Pest Control (India) Private Limited5 at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.</p><p>8. In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh v. Rajbir Singh6 at paras-1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation7 and Nagappa v Gurudayal Singh8 that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. The expression 'just compensation' has been explained in Sarla Verma`s case (cited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just compensation' is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation.</p><p>9. From the above legal position, coming to the quantum of compensation concerned, there is no appeal or cross objections by the claimants who are respondent Nos.1 to 5 and thus though they claimed that the quantum is low and requires to increase, they are not entitled so to say from well settled expression of the Apex Court in Ranjane Prakash Vs. Divisional Manager9 following the earlier expressions in Oriental Insurance Company Limited V. R.Swaminathan10 at para No.5 by referring to the earlier expression in Benarsi Vs. Ram phaul11 that increasing of compensation amount to the claimants with no cross objections, beyond amount awarded by the Tribunal in the appeal filed by the Insurance Company does not arise.</p><p>10. Now coming to the compensation awarded of Rs.3,00,000/- whether on higher side concerned; the deceased was aged about 50 years and the income of the deceased taken by the tribunal is at Rs.3,000/- per month X12 Rs.36,000/- per annum, as the dependants are five in number; as per Sarla Verma's case besides the mutliplier applicable is 11, personal expenses of deceased to be taken is only 1/4th. Then it comes to Rs.2,97,000/-. In fact the prospective earning capacity to be taken to increase is 15% thereon from the age of the deceased about 50 years besides consortium to the wife of deceased Rs.1,00,000/-, Rs.25,000/- towards funeral expenses, Rs.5,000/- the minimum towards for loss of estate and for love care and guidance to the two minor children claimant Nos.4 and 5 even awarded Rs.20,000/- by following the three bench expression of Apex Court Rajesh (supra), the claimants are entitled to more than four and half lakhs, but for no cross objections to confirm the same with interest at the rate of 7 1/2% per annum. Thus, on the quantum of compensation and rate of interest for this Court while sitting in appeal there is nothing to interfere.</p><p>11. Now coming to decide whether the insurer can be exonerated from liability to indemnify the insured to the third party claimants for the driver not having any license besides overloading from which the accident resulted concerned: i) No doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala &amp; Others12, the two judge bench of the Apex Court in this decision by referring to National Insurance Company Limited Vs. Swaran Singh &amp; Others13 apart from other expressions in National Insurance Company Limited Vs. Kusum Rai &amp; Others14 and Oriental Insurance Company Limited Vs. Nanjappan &amp; Others15 and Ishwar Chandra &amp; Others Vs. Oriental Insurance Company Limited &amp; Others16 held that the insurer is not liable to indemnify the owner, when the driver has no license to drive the crime vehicle. ii) In Ishwar Chandra (supra) it was held by the two judge bench that the driver's license when expired 30 days prior to the date of accident and no renewal application filed even by date of accident to say a renewal dates back to date of application, it is suffice to hold the driver has no license as on date of accident. iii) In NIC Vs. Kusumrai (supra) it was held by the two judge bench that, the vehicle was used as taxi (commercial) and the driver is required to hold appropriate license but not having valid commercial vehicle license and from that breach, the insurer is held entitled to rise the defence. iv) In Sardari vs. Sushilkumar17- the facts show one Jageeru, Tonga driver on 10-2-85 met with accident when it colluded with tractor and he later was expired on 15-2-85 and the Insurance Company in the counter contended that the driver of the tractor did not hold valid and effective license and there is no liability to indemnify. In the course of trial, the said tractor driver Sushil Kumar categorically deposed that he does not know how to drive a tractor as he never even tried to learn driving tractor, that he had not been possessing any license to drive a tractor and he did not even apply for licence. It was therefrom, the Tribunal held that admittedly when the driver of crime tractor was not knowing to drive tractor and not even having any license at all to drive, the Insurance Company is not liable to indemnify owner of the tractor. The appeal was also dismissed confirming the said finding of the tribunal when preferred by driver and owner of the tractor for no appeal by claimants. In that factual context it was observed in para 6 of the judgment by the Supreme Court that, time and again made distinction between cases where III party is involved Vis--vis owner of the vehicle was involved. The object of Sections 147 &amp; 149 of the MV Act enacted was social justice doctrine envisaged in the preamble of the constitution, however, the Act itself provides where the insurance company can avoid its liability. The avoidance of such liability by insurer largely depends upon violation of conditions of the Insurance Contract. Where the breach is ex-facie apparent from the record, court need not fasten liability on the insurer. In certain situations, however, the court while fastening liability on insured, may direct the insurer to pay to the claimants and recover the same from the insured. v) In UIIC Vs. Gianchand18, it was observed that when the insured handed over the vehicle to an un-licensed driver, insurer would be exonerated from liability to meet III party claims. vi) In Swaran Singh (three judges bench-supra) it was laid down that the owner of the vehicle has a responsibility to see that no vehicle is driven except by a person who doesn't satisfy Sections 3 &amp; 4 of the MVAct. In a case where the driver admittedly did not hold license and the same was allowed consciously to be driven by the owner of the vehicle by such person insurer in its defence succeed to avoid liability. The matter, however, may be different where a disputed question of fact arises as to driver had a license or owner committed a breach of the policy terms by consciously allowing a person to drive without having a valid driving license. vii) In NIAC Vs. Prabhulal19 it was a claim arisen out of Consumer District Forum holding no liability of the insurer against the National Consumer Commission's verdict fixing responsibility. viii) In Prem Kumari Vs. Prahlad Dev20 it was also observed that owner of the vehicle cannot contend no liability to verify the fact as to whether the driver possessed a valid license or not. ix) In OIC Vs. Prudhviraj21 on facts from the RTA record shows the driver was not having any driving license for the owner to permit the driver to drive the vehicle and for that accident not chosen to make liable the insurer. x) By referring all these expressions at Para 9 of the Judgment of the Apex Court in Saradari (supra), the Apex Court did not choose to interfere with the finding of the tribunal confirmed by the High Court, in not chosen to make liable the insurer. xi) In Surina Durvasulu Vs. Bhavanarayana Murthy22 Para 14 it was held that when the driver had no valid driving license to drive tractor and the charge sheet also mentions a penal provision for violation of the same in driving with no license and nothing deposed by owner despite contention of Insurance Company, that he has taken all necessary precautions to entrust the vehicle to a person who had valid driving license, insurance company not made liable holds good. xii) It is clear from the decisions that once there is material to say conscious knowledge of owner of defective or no license of driver, insurer need not be made liable. In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the law in this regard referring to United Insurance Co. Ltd Vs. Lehru23 among others and the principle laid down therein was approved and reiterated even in the subsequent decisions including the above but for distinguishing for the facts on hand in each of the cases as held by the Apex Court in NIC Vs. Geetabhat24 that the principle is the same but for any deviation from factual matrix of each case if at all to say non- liability. xiii) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan (supra), Geetabhat (supra) and several other expressions in the cases relating to no license at all or imperfect and no valid license held that even it is one of breach of terms of policy and violation of rules, since the policy otherwise covers risk, though denied liability from no valid license, in the absence of showing such violation is to the conscious knowledge of insured-owner, insurer is to pay and recover. xiv) Even in Geetabhat (supra) it was held reiterating the principle laid down in the above decisions after referring the above among other several decisions that when insurer seeks to avoid liability on ground of fake or no license of driver of the vehicle of the insurer, but for saying no license issued by RTO in name of the driver, even taken alleged license as fake, insurer has to pay to the third party claimants and recover from insured. xv) In fact, in Swaran Singh's case (supra), the Apex Court observed that it is the obligation on the part of owner to take equitable care to see that the driver had an appropriate license to drive the vehicle. The question as regards the liability of owner vis--vis the driver being not possessed of a valid license concerned, at para-89, it was observed that Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of this Section. The various types of vehicles described for which a driver may obtain a license for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. xvi) Furthermore, in Oriental Insurance Company Limited Vs. Brij Mohan &amp; Others25 while holding that insurance company has no liability, however, invoked Article 142 and 136 of the Constitution in directing the insurer to pay first and recover from the tractor owner. It was in fact on a close reading discloses not a mere case of exercise of exclusive jurisdiction of the Apex Court from the fact that it contains the general observation that interest of justice would be sub-served in giving such a direction to pay and recover having regard to the scope and purport of Section 168 of the MV Act,1988. xvii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni &amp; Another26, the Apex Court doubted the correctness of the directions issued in various judgments to the insurer to pay even though not liable and therefrom formulated issues for consideration by a larger bench xviii) In fact, by referring to the above expression in Swaran Singh's case (supra), this (Andhra Pradesh) Court in an appeal by insurance company, observed in New India Assurance Company Limited, Tirupati, Vs. G.Sampoorna &amp; Others27 from paras-6 onwards that insurer raised the contention of driver was not having valid license at the time of accident and examined employee of Regional Transport Office, besides employee of the insurance company and the owner of the vehicle did not speak anything. No evidence produced by claimants to show that there was a license or it was even if lapsed renewed later. However, the Tribunal held that even in the absence of driving license, insurance company has to pay and recover rather than escaping from liability for the claimants are not parties to the contract of insurance of the vehicle between insurer and insured. xix) This (High) Court therefrom held that the conclusion is not acceptable from reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala' case (supra) in saying the statute itself excludes insurer's liability in such a case, thereby the fact whether the claimant being a third party is not a privy to the policy between insurer and insured has no relevance. It is however, by referring to the Swaran Singh (supra) apart from the earlier expressions referred therein, observed that the proposition laid down in Swaran Singh (supra) is referred to a larger bench and it is still pending. In Swaran Singh (supra) it was held that the Tribunals and the Courts in exercise of their jurisdiction to issue any direction for pay and recovery, consider, depending upon facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance under Section 149(2)(a)(ii) of the Act, the insurance company shall be entitled to realise the award amount from owner or driver, as the case may be, in execution of the same award in view of Sections 165 and 168 of the Act. xx) It is from this, this Court in Sampoorna (supra) from para-13 onwards observed that &quot;.In my opinion from the afore-extracted passage of the judgment, it is evident that direction to the insurance company to pay the compensation does not automatically follow in every case where the insurance company is found not liable. The same depends upon the fats and circumstances of each case. In all the aforementioned cases, which were referred to by the Supreme Court, directions were given on the facts of each case and considered the fact that the provisions of the Act dealing with insurance and payment of compensation are beneficial in nature&quot;.. In paragraph 81 of Swaran Singh (supra), it was observed that right to avoid liability in terms of Section 149(2) is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence; but it is another thing to say that despite the fact that its defence has been accepted, having regard to facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. xxi) The Supreme Court in subsequent judgments have not treated the previous judgments including Swaran Singh (supra) as laying down unexceptionable principle that in every claim brought before the Tribunal, the insurance company should be directed to pay compensation amount first even though its defence was found accepted, as evident from some of the later expressions like in National Insurance Company Limited Vs. Bommithi Subbhayamma &amp; Others28. xxii) By referring to the above, from paragraph 20, this (High) Court in Sampoorna (supra) observed that on the strength of the discussion undertaken above, it is not possible for this Court to treat the judgment in Swaran Singh (supra) as containing mandatory directions to Tribunals and Courts to invariably direct the insurer to pay at first instance and recover from owner of the vehicle even though they are held not liable. Pending resolution of the issues by the larger bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (supra) as leaving discretion to the Tribunals and the Courts to give appropriate directions depending upon facts and circumstances of each case. xxiii) By applying the ratio in Swaran Singh (supra) at para-21 of the judgment, this (High) Court held that some amount that was already deposited by the insurance company, which holds good to withdraw, and for the rest, insurance company is not liable. In fact besides Lehru (supra), Swaran Singh's (supra) and Nanjappan (supra) in holding that from lack of license or fake license or imperfect or defective license, in the absence of proof of conscious knowledge of owner, the insurer can be ordered firstly to satisfy the claimants by indemnifying the owner and then recover from owner and driver; i) Even in the subsequent expressions of the Apex Court in Kusumlatha and others V. Satbir and Others29 it was held that the Tribunal has got inherent power to issue such directions to insurer to pay and recover. ii) Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company30 a two judge bench of the Apex Court held that even though the insurer has taken the defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licensed in during the crime vehicle when met with accident, third party has a statutory right to recover compensation from insurer and it was for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any breach of condition of Insurance policy.</p><p>13. From the above legal propositions in the factual matrix of the case and from the contentions of the insurer-appellant, RW.2 owner though deposed that he verified from xerox copy supplied by the R.1 - RW3 of the license possessed by him found he got license and he handed over the same to the insurer. However to believe his version, he did not file such a Xerox copy, if at all, any copy he received and given copy of it to the insurer and in the absence of which, the claimant whatever copy he received from the driver handed over to the insurer and not possessed copy of it to file is unbelievable but for to say apparently an introduced version to get over from liability if possible by such a say in coming to the witness box as if he entrusted with no conscious knowledge of no license to the driver. Here from the expressions of Swaran Singh's (supra), Lehru (supra) apart from the later decision in Nanjappan shows the knowledge of the owner is one of the pre requisites in exercising of judicial discretion by the Tribunal or no interference with any finding of the tribunal by appellate or revisional authority by sitting against. Here the version of the owner as RW.2 of there is no conscious knowledge of the respondent No.1 has no driving license is also belied by the evidence of driver R1 as RW.3 by coming to the witness box that he never informed of possessed any driving license for driving the transport LMV crime auto. When such is the case and when he deposed that he did not hand over any license to the R.2 owner from not possessed any driving license; the question of handing over any license and its perusal, much less to hand over to insurer by insured does not arise. Thus, even no RTO was examined other than the driver, which is when suffice to say conscious knowledge of owner, the burden of the insurer is discharged. Further, the insurer in discharge of the burden even issued notice to the owner that is marked. Ex.B4 to Ex.B8 are the copy of the legal notice with receipt, notices issued to the advocate for the owner before the trial Court to produce any copy of driving license. Thus, there is nothing remains for the tribunal to comment on non examination of RTO concerned to prove that the driver was not possessing any driving license. It is in fact to be kept in mind in appreciation of evidence that a positive evidence can be brought on record to prove or to disprove any fact or to say left not proved as envisaged by Section 3 of Evidence Act. However, coming to negative facts of no license by saying the driver has no license at all and the driver and owner failed to produce even notice given to them and the advocate of owner to produce; the question of summoning several RTOs or any particular RTO records of its jurisdiction to submit before the Court to show of no license in his name doesn't arise. There is when no license to R.1 driver, practically expecting of impossibility so to prove of no license by summoning records for that, but for to say adverse inference to draw against the owner from the facts on hand. Having regard to the above it establishes that he got conscious knowledge in entrusting vehicle to a driver with no license as proved from the factual matrix of the case to say that the insurer is not liable to say no other better case can be expected to say in entrusting vehicle to a driver by a person not possessed any license and come with a claim as if there is license instead of saying not having conscious knowledge of the fact. Accordingly, point 1 is answered. POINT -2:</p><p>14. Accordingly and in the result, the appeal is allowed while confirming the quantum of compensation of Rs.3,00,000/- with interest at the rate of 7.5% per annum, with proportionate costs; set aside the findings of the tribunal so far as the joint and several liability of the insurer to indemnify the insured; by holding that the insurer is not liable but for by permitting the claimants to withdraw half of the amount already in deposit made by the insurer (appellant) as per the order passed in M.A.C.M.A. M.P No.2921 of 2012 dated 08.06.2012, for the insurer to recover the same from the owner of the vehicle by filing execution proceedings before the tribunal and seek for direction to the RTA not to transfer registration of the vehicle unless already transferred and also for attachment of property of the owner/ insured for assurance of recovery. Rest of the amount due to the claimants be recovered from the owner of the vehicle (2nd respondent in claim petition). There is no order as to costs of the appeal.</p><p>15. Miscellaneous petitions, if any pending in this appeal, shall stand closed. _________________________ Dr. B. SIVA SANKARA RAO, J Date:</p><p>21. 01-2014',
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			(int) 5 => 'M.V.O.P.No.458 of 2008',
			(int) 6 => 'the 1st',
			(int) 7 => '6612',
			(int) 8 => '2007',
			(int) 9 => '30 days',
			(int) 10 => 'about 50 years',
			(int) 11 => '11',
			(int) 12 => 'about 50 years',
			(int) 13 => 'Rs.25,000/-',
			(int) 14 => 'interfere.11',
			(int) 15 => '30 days',
			(int) 16 => 'para-89',
			(int) 17 => 'para-13',
			(int) 18 => '20',
			(int) 19 => 'para-21',
			(int) 20 => '2012',
			(int) 21 => '01-2014'
		),
		'PRODUCT' => array(
			(int) 0 => 'Scale 531 21.2008',
			(int) 1 => 'M/s.Rama Pallapothu.3',
			(int) 2 => 'Motor Accidents',
			(int) 3 => 'Rs.20,000/-',
			(int) 4 => 'Para 9',
			(int) 5 => 'Para 14',
			(int) 6 => 'nature&quot',
			(int) 7 => 'No.1'
		),
		'QUANTITY' => array(
			(int) 0 => '24.2008-ACJ-1498 25.AIR2007SC197126',
			(int) 1 => '10-2-85'
		),
		'MONEY' => array(
			(int) 0 => '27.2010'
		),
		'ORDINAL' => array(
			(int) 0 => '3rd',
			(int) 1 => '2nd',
			(int) 2 => '1st',
			(int) 3 => '1st',
			(int) 4 => '1st',
			(int) 5 => 'first',
			(int) 6 => '1st',
			(int) 7 => '1st',
			(int) 8 => '2nd',
			(int) 9 => '3rd',
			(int) 10 => 'third',
			(int) 11 => 'third',
			(int) 12 => 'first',
			(int) 13 => 'third',
			(int) 14 => 'first',
			(int) 15 => 'first',
			(int) 16 => 'first',
			(int) 17 => 'firstly',
			(int) 18 => 'third',
			(int) 19 => 'third',
			(int) 20 => '2nd'
		),
		'PERCENT' => array(
			(int) 0 => '7 1/2%',
			(int) 1 => '7 1/2%',
			(int) 2 => '7 1/2%',
			(int) 3 => '15%',
			(int) 4 => '7 1/2%',
			(int) 5 => '7.5%'
		),
		'TIME' => array(
			(int) 0 => '4.30 pm',
			(int) 1 => '04.09.2007',
			(int) 2 => '5.10 pm'
		),
		'NORP' => array(
			(int) 0 => 'Others13'
		)
	),
	'desc' => array(
		'Judgement' => array(
			'id' => '1122811',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Bajaj Allianz General Insurance Company',
			'authreffered' => null,
			'casename' => 'Bajaj Allianz General Insurance Company Vs. Gandam Somulamma and 6 Othe',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2014-01-21',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO',
			'judgement' => '<p>HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF201221-01-2014 Bajaj Allianz General Insurance Company Ltd., Rep. by its General Manager, VIP Road, CBM Compound, Visakhapatnam. ...APPELLANT Gandam Somulamma &amp; 6 others ...RESPONDENTS Counsel for Appellant: Sri T.Mahender Rao Counsel for Respondent Nos.1 to 5 : M/s Rama Pallapothu HEAD NOTE: ?.Cases referred 1.2008 (1) LS-SC-177 2.1965 (1) All. E.R-563 3.1963 (2) All.E.R-432 4.1969 (1) All.E.R-555 5.1995 ACJ366(SC) 6.2013 ACJ1403= (4) ALT35(SC) 7.2009 ACJ12988.2003 ACJ129.2011 (8) Scale 240 10.2006 ACJ139811.2003 (9) SCC60612.AIR2009SC20813.2004 (3) SCC297- 2004-ACJ-1 14.2006 (4) SCC25015.2004 (13) SCC224= 2004-SAR (Civil) 290 16.2007 (10) SCC650= 2007 (4) Scale 292 17.2008 (1) LS-SC-177 18.1997 (7) SCC-558 19.2007 (13) SCC24620.2008 (1) Scale 531 21.2008 (1) Scale 727 22.2008 ACJ65423.JT-2003 (2) SC-595 =2003-ACJ-611=2003-ACT-611(SC) 24.2008-ACJ-1498 25.AIR2007SC197126. Appeal (Civil) C.C. No.10993 of 2009 27.2010 (5) ALT10528.2005 (4) ACJ72129.AIR2011SC1234= 2011 (2) SCJ63930.2013 (7) SCC62HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF2012</p>JUDGMENT<p>: The 3rd respondent to the claim petition is no other than the insurer of crime auto (bearing No.AP16Y6612 of 2nd respondent driven by 1st respondent, having been aggrieved by the award of the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (FTC), Krishna District, at Machilipatnam (for short, 'Tribunal') in M.V.O.P.No.458 of 2008 dated 21.02.2012, awarded compensation of Rs.3,00,000/- (Rupees three lakhs only) as prayed for with interest at the rate of 7 1/2% per annum against the respondents 2 and 3 who are owner and insurer with joint and several liability, filed the appeal seeking to set aside the finding of the tribunal and exempt the insurer - respondent No.3 from the liability saying the respondent No.2 owner of the vehicle is only liable for paying the compensation.</p><p>2. Heard Sri T.Mahender Rao, learned counsel for the appellant. The respondents 6 and 7 herein who are the respondent Nos.1 and 2 to the claim petition (driver and owner of the auto), were served with notice are called absent with no representation. The respondent Nos.1 to 5 herein who are the claimants in the claim petition represented by their advocate M/s.Rama Pallapothu.</p><p>3. In fact the counsel for the said claimants having submitted earlier that for this Court while sitting in appeal there is nothing to interfere, taken time to submit further arguments to dated 09.12.2013 from 06.12.2013 and did not appear later even the matter was again posted to 12.12.2013. Hence taken as heard the respondent Nos.6 and 7 and further arguments of the respondent Nos.1 to 5. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal. 3(a). The contentions in the grounds of appeal as well as oral submission during the hearing in nutshell of the insurer are that the tribunal is erred in its finding at para No.23 fastening joint liability despite the auto with seating capacity of 1+3 passengers was overloaded with as many as 12 passengers other than driver and from the fact that the 1st respondent-driver not at all possessed driving license and he so deposed having been examined RW.3 at the instance of the insurer after the evidence of RW.2 owner of the vehicle with a version he has gone through the Xerox copy of driving license of the 1st respondent and permitted to drive and furnished said Xerox copy to the insurer and not having any copy with him to file. The driver as RW.3 categorically deposed that he has not having any driving license and he did not apply and he did not give any copy of such license to owner. It is the further contention that the tribunal went wrong in saying that it is the onus of the insurer further to examine the RTO authorities concerned in proof of respondent No.1- driver has no driving license, as such the respondent did not discharge the burden, thereby in holding the insurer also liable. It is also the contention that from the factual matrix even it is proved, said finding of the tribunal is contrary to law, weight of evidence, probabilities of the case and erroneous outcome in fixing liability on the respondent No.3-insurer despite proved violation to the terms of the policy saying for non examination of RTO concerned without looking into what more left even from driver deposed and thereby the award of the tribunal is sought to be set aside and the insurer is to be exonerated particularly by relying upon Sardari vs. Sushilkumar1. On the facts from the tractor driver admitted that no license ever possessed and does not know how to drive the tractor that caused the accident that held exonerated the insurer from the breach of Section 3 of the A.P. Motor Vehicles Act in entrusting the vehicle to a driver without no license by the owner. It is also contended that awarding of Rs.3,00,000/- as prayed for with interest at 7 1/2% per annum is also on high side and hence sought to fix the compensation lower to it justly and reasonably without liability on the insurer.</p><p>4. Now the points that arise for consideration in the appeal are:</p><p>1. Whether the compensation awarded by the Tribunal only against the owner by exempting the insurer from the liability is unsustainable and the quantum of compensation awarded is also not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?.</p><p>2. To what result?. POINT-1:</p><p>5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 01.08.2007 the deceased went to Guduru to attend coolie work and after completion of the work, he was while returning to Bandar in the crime auto bearing No.AP16 6612, when the auto reached at Chittigudur Village at 4.30 pm due to the 1st respondent who is the driver of the crime auto, drove in a rash and negligent manner in high speed and lost control over the auto, it turned turtle in which accident the deceased and other occupants of the auto sustained grievous injuries. Immediately, the deceased was shifted to Government Hospital, Machilipatnam and while undergoing treatment he was succumbed to the injuries on 04.09.2007 at 5.10 pm. The Sub-Inspector of the Police, Gurudu Police at the first instance, basing on the statement of deceased, registered a case in Crime No.69 of 2007 under Section 337 and 338 IPC against the 1st respondent-driver and later altered the section of law on receipt of death intimation of the deceased by adding 304 -A IPC against the driver of crime auto which occurrence is also proved from Ex.A1 FIR, Ex.A4 M.V.I report and Ex.A6 charge sheet and evidence of P.W.1 as concluded by the tribunal. The tribunal ultimately concluded that the claim petition is to be allowed by awarding full compensation of Rs.3,00,000/- as prayed for with interest at the rate of 7 1/2% per annum from the date of filing of claim petition till realization with costs, directing the respondents 1 to 3 i.e., driver, owner and insurer of the auto covered by Ex.B1 policy to deposit the compensation amount with interest thereon with costs within 30 days from the date of this award.</p><p>6. From the above factual matrix of case, the accident was the result of rash and negligent driving of the 1st respondent-driver of crime auto (bearing No.AP16Y6612 belongs to 2nd respondent-owner insured with 3rd respondent-insurance company proved. It also proved that the auto was overloading against the capacity of three passengers with 12 passengers as held by the Tribunal in para No.10. Thus there is nothing to interfere by sitting in appeal so far as rash and negligent driving but for a quantum of compensation and on liability of insurer.</p><p>7. Now coming to the quantum of compensation under dispute concerned before coming to decide, what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James2, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what compensation would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and should neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly3 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver4 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi v. Pest Control (India) Private Limited5 at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.</p><p>8. In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh v. Rajbir Singh6 at paras-1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation7 and Nagappa v Gurudayal Singh8 that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. The expression 'just compensation' has been explained in Sarla Verma`s case (cited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just compensation' is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation.</p><p>9. From the above legal position, coming to the quantum of compensation concerned, there is no appeal or cross objections by the claimants who are respondent Nos.1 to 5 and thus though they claimed that the quantum is low and requires to increase, they are not entitled so to say from well settled expression of the Apex Court in Ranjane Prakash Vs. Divisional Manager9 following the earlier expressions in Oriental Insurance Company Limited V. R.Swaminathan10 at para No.5 by referring to the earlier expression in Benarsi Vs. Ram phaul11 that increasing of compensation amount to the claimants with no cross objections, beyond amount awarded by the Tribunal in the appeal filed by the Insurance Company does not arise.</p><p>10. Now coming to the compensation awarded of Rs.3,00,000/- whether on higher side concerned; the deceased was aged about 50 years and the income of the deceased taken by the tribunal is at Rs.3,000/- per month X12 Rs.36,000/- per annum, as the dependants are five in number; as per Sarla Verma's case besides the mutliplier applicable is 11, personal expenses of deceased to be taken is only 1/4th. Then it comes to Rs.2,97,000/-. In fact the prospective earning capacity to be taken to increase is 15% thereon from the age of the deceased about 50 years besides consortium to the wife of deceased Rs.1,00,000/-, Rs.25,000/- towards funeral expenses, Rs.5,000/- the minimum towards for loss of estate and for love care and guidance to the two minor children claimant Nos.4 and 5 even awarded Rs.20,000/- by following the three bench expression of Apex Court Rajesh (supra), the claimants are entitled to more than four and half lakhs, but for no cross objections to confirm the same with interest at the rate of 7 1/2% per annum. Thus, on the quantum of compensation and rate of interest for this Court while sitting in appeal there is nothing to interfere.</p><p>11. Now coming to decide whether the insurer can be exonerated from liability to indemnify the insured to the third party claimants for the driver not having any license besides overloading from which the accident resulted concerned: i) No doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala &amp; Others12, the two judge bench of the Apex Court in this decision by referring to National Insurance Company Limited Vs. Swaran Singh &amp; Others13 apart from other expressions in National Insurance Company Limited Vs. Kusum Rai &amp; Others14 and Oriental Insurance Company Limited Vs. Nanjappan &amp; Others15 and Ishwar Chandra &amp; Others Vs. Oriental Insurance Company Limited &amp; Others16 held that the insurer is not liable to indemnify the owner, when the driver has no license to drive the crime vehicle. ii) In Ishwar Chandra (supra) it was held by the two judge bench that the driver's license when expired 30 days prior to the date of accident and no renewal application filed even by date of accident to say a renewal dates back to date of application, it is suffice to hold the driver has no license as on date of accident. iii) In NIC Vs. Kusumrai (supra) it was held by the two judge bench that, the vehicle was used as taxi (commercial) and the driver is required to hold appropriate license but not having valid commercial vehicle license and from that breach, the insurer is held entitled to rise the defence. iv) In Sardari vs. Sushilkumar17- the facts show one Jageeru, Tonga driver on 10-2-85 met with accident when it colluded with tractor and he later was expired on 15-2-85 and the Insurance Company in the counter contended that the driver of the tractor did not hold valid and effective license and there is no liability to indemnify. In the course of trial, the said tractor driver Sushil Kumar categorically deposed that he does not know how to drive a tractor as he never even tried to learn driving tractor, that he had not been possessing any license to drive a tractor and he did not even apply for licence. It was therefrom, the Tribunal held that admittedly when the driver of crime tractor was not knowing to drive tractor and not even having any license at all to drive, the Insurance Company is not liable to indemnify owner of the tractor. The appeal was also dismissed confirming the said finding of the tribunal when preferred by driver and owner of the tractor for no appeal by claimants. In that factual context it was observed in para 6 of the judgment by the Supreme Court that, time and again made distinction between cases where III party is involved Vis--vis owner of the vehicle was involved. The object of Sections 147 &amp; 149 of the MV Act enacted was social justice doctrine envisaged in the preamble of the constitution, however, the Act itself provides where the insurance company can avoid its liability. The avoidance of such liability by insurer largely depends upon violation of conditions of the Insurance Contract. Where the breach is ex-facie apparent from the record, court need not fasten liability on the insurer. In certain situations, however, the court while fastening liability on insured, may direct the insurer to pay to the claimants and recover the same from the insured. v) In UIIC Vs. Gianchand18, it was observed that when the insured handed over the vehicle to an un-licensed driver, insurer would be exonerated from liability to meet III party claims. vi) In Swaran Singh (three judges bench-supra) it was laid down that the owner of the vehicle has a responsibility to see that no vehicle is driven except by a person who doesn't satisfy Sections 3 &amp; 4 of the MVAct. In a case where the driver admittedly did not hold license and the same was allowed consciously to be driven by the owner of the vehicle by such person insurer in its defence succeed to avoid liability. The matter, however, may be different where a disputed question of fact arises as to driver had a license or owner committed a breach of the policy terms by consciously allowing a person to drive without having a valid driving license. vii) In NIAC Vs. Prabhulal19 it was a claim arisen out of Consumer District Forum holding no liability of the insurer against the National Consumer Commission's verdict fixing responsibility. viii) In Prem Kumari Vs. Prahlad Dev20 it was also observed that owner of the vehicle cannot contend no liability to verify the fact as to whether the driver possessed a valid license or not. ix) In OIC Vs. Prudhviraj21 on facts from the RTA record shows the driver was not having any driving license for the owner to permit the driver to drive the vehicle and for that accident not chosen to make liable the insurer. x) By referring all these expressions at Para 9 of the Judgment of the Apex Court in Saradari (supra), the Apex Court did not choose to interfere with the finding of the tribunal confirmed by the High Court, in not chosen to make liable the insurer. xi) In Surina Durvasulu Vs. Bhavanarayana Murthy22 Para 14 it was held that when the driver had no valid driving license to drive tractor and the charge sheet also mentions a penal provision for violation of the same in driving with no license and nothing deposed by owner despite contention of Insurance Company, that he has taken all necessary precautions to entrust the vehicle to a person who had valid driving license, insurance company not made liable holds good. xii) It is clear from the decisions that once there is material to say conscious knowledge of owner of defective or no license of driver, insurer need not be made liable. In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the law in this regard referring to United Insurance Co. Ltd Vs. Lehru23 among others and the principle laid down therein was approved and reiterated even in the subsequent decisions including the above but for distinguishing for the facts on hand in each of the cases as held by the Apex Court in NIC Vs. Geetabhat24 that the principle is the same but for any deviation from factual matrix of each case if at all to say non- liability. xiii) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan (supra), Geetabhat (supra) and several other expressions in the cases relating to no license at all or imperfect and no valid license held that even it is one of breach of terms of policy and violation of rules, since the policy otherwise covers risk, though denied liability from no valid license, in the absence of showing such violation is to the conscious knowledge of insured-owner, insurer is to pay and recover. xiv) Even in Geetabhat (supra) it was held reiterating the principle laid down in the above decisions after referring the above among other several decisions that when insurer seeks to avoid liability on ground of fake or no license of driver of the vehicle of the insurer, but for saying no license issued by RTO in name of the driver, even taken alleged license as fake, insurer has to pay to the third party claimants and recover from insured. xv) In fact, in Swaran Singh's case (supra), the Apex Court observed that it is the obligation on the part of owner to take equitable care to see that the driver had an appropriate license to drive the vehicle. The question as regards the liability of owner vis--vis the driver being not possessed of a valid license concerned, at para-89, it was observed that Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of this Section. The various types of vehicles described for which a driver may obtain a license for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. xvi) Furthermore, in Oriental Insurance Company Limited Vs. Brij Mohan &amp; Others25 while holding that insurance company has no liability, however, invoked Article 142 and 136 of the Constitution in directing the insurer to pay first and recover from the tractor owner. It was in fact on a close reading discloses not a mere case of exercise of exclusive jurisdiction of the Apex Court from the fact that it contains the general observation that interest of justice would be sub-served in giving such a direction to pay and recover having regard to the scope and purport of Section 168 of the MV Act,1988. xvii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni &amp; Another26, the Apex Court doubted the correctness of the directions issued in various judgments to the insurer to pay even though not liable and therefrom formulated issues for consideration by a larger bench xviii) In fact, by referring to the above expression in Swaran Singh's case (supra), this (Andhra Pradesh) Court in an appeal by insurance company, observed in New India Assurance Company Limited, Tirupati, Vs. G.Sampoorna &amp; Others27 from paras-6 onwards that insurer raised the contention of driver was not having valid license at the time of accident and examined employee of Regional Transport Office, besides employee of the insurance company and the owner of the vehicle did not speak anything. No evidence produced by claimants to show that there was a license or it was even if lapsed renewed later. However, the Tribunal held that even in the absence of driving license, insurance company has to pay and recover rather than escaping from liability for the claimants are not parties to the contract of insurance of the vehicle between insurer and insured. xix) This (High) Court therefrom held that the conclusion is not acceptable from reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala' case (supra) in saying the statute itself excludes insurer's liability in such a case, thereby the fact whether the claimant being a third party is not a privy to the policy between insurer and insured has no relevance. It is however, by referring to the Swaran Singh (supra) apart from the earlier expressions referred therein, observed that the proposition laid down in Swaran Singh (supra) is referred to a larger bench and it is still pending. In Swaran Singh (supra) it was held that the Tribunals and the Courts in exercise of their jurisdiction to issue any direction for pay and recovery, consider, depending upon facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance under Section 149(2)(a)(ii) of the Act, the insurance company shall be entitled to realise the award amount from owner or driver, as the case may be, in execution of the same award in view of Sections 165 and 168 of the Act. xx) It is from this, this Court in Sampoorna (supra) from para-13 onwards observed that &quot;.In my opinion from the afore-extracted passage of the judgment, it is evident that direction to the insurance company to pay the compensation does not automatically follow in every case where the insurance company is found not liable. The same depends upon the fats and circumstances of each case. In all the aforementioned cases, which were referred to by the Supreme Court, directions were given on the facts of each case and considered the fact that the provisions of the Act dealing with insurance and payment of compensation are beneficial in nature&quot;.. In paragraph 81 of Swaran Singh (supra), it was observed that right to avoid liability in terms of Section 149(2) is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence; but it is another thing to say that despite the fact that its defence has been accepted, having regard to facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. xxi) The Supreme Court in subsequent judgments have not treated the previous judgments including Swaran Singh (supra) as laying down unexceptionable principle that in every claim brought before the Tribunal, the insurance company should be directed to pay compensation amount first even though its defence was found accepted, as evident from some of the later expressions like in National Insurance Company Limited Vs. Bommithi Subbhayamma &amp; Others28. xxii) By referring to the above, from paragraph 20, this (High) Court in Sampoorna (supra) observed that on the strength of the discussion undertaken above, it is not possible for this Court to treat the judgment in Swaran Singh (supra) as containing mandatory directions to Tribunals and Courts to invariably direct the insurer to pay at first instance and recover from owner of the vehicle even though they are held not liable. Pending resolution of the issues by the larger bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (supra) as leaving discretion to the Tribunals and the Courts to give appropriate directions depending upon facts and circumstances of each case. xxiii) By applying the ratio in Swaran Singh (supra) at para-21 of the judgment, this (High) Court held that some amount that was already deposited by the insurance company, which holds good to withdraw, and for the rest, insurance company is not liable. In fact besides Lehru (supra), Swaran Singh's (supra) and Nanjappan (supra) in holding that from lack of license or fake license or imperfect or defective license, in the absence of proof of conscious knowledge of owner, the insurer can be ordered firstly to satisfy the claimants by indemnifying the owner and then recover from owner and driver; i) Even in the subsequent expressions of the Apex Court in Kusumlatha and others V. Satbir and Others29 it was held that the Tribunal has got inherent power to issue such directions to insurer to pay and recover. ii) Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company30 a two judge bench of the Apex Court held that even though the insurer has taken the defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licensed in during the crime vehicle when met with accident, third party has a statutory right to recover compensation from insurer and it was for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any breach of condition of Insurance policy.</p><p>13. From the above legal propositions in the factual matrix of the case and from the contentions of the insurer-appellant, RW.2 owner though deposed that he verified from xerox copy supplied by the R.1 - RW3 of the license possessed by him found he got license and he handed over the same to the insurer. However to believe his version, he did not file such a Xerox copy, if at all, any copy he received and given copy of it to the insurer and in the absence of which, the claimant whatever copy he received from the driver handed over to the insurer and not possessed copy of it to file is unbelievable but for to say apparently an introduced version to get over from liability if possible by such a say in coming to the witness box as if he entrusted with no conscious knowledge of no license to the driver. Here from the expressions of Swaran Singh's (supra), Lehru (supra) apart from the later decision in Nanjappan shows the knowledge of the owner is one of the pre requisites in exercising of judicial discretion by the Tribunal or no interference with any finding of the tribunal by appellate or revisional authority by sitting against. Here the version of the owner as RW.2 of there is no conscious knowledge of the respondent No.1 has no driving license is also belied by the evidence of driver R1 as RW.3 by coming to the witness box that he never informed of possessed any driving license for driving the transport LMV crime auto. When such is the case and when he deposed that he did not hand over any license to the R.2 owner from not possessed any driving license; the question of handing over any license and its perusal, much less to hand over to insurer by insured does not arise. Thus, even no RTO was examined other than the driver, which is when suffice to say conscious knowledge of owner, the burden of the insurer is discharged. Further, the insurer in discharge of the burden even issued notice to the owner that is marked. Ex.B4 to Ex.B8 are the copy of the legal notice with receipt, notices issued to the advocate for the owner before the trial Court to produce any copy of driving license. Thus, there is nothing remains for the tribunal to comment on non examination of RTO concerned to prove that the driver was not possessing any driving license. It is in fact to be kept in mind in appreciation of evidence that a positive evidence can be brought on record to prove or to disprove any fact or to say left not proved as envisaged by Section 3 of Evidence Act. However, coming to negative facts of no license by saying the driver has no license at all and the driver and owner failed to produce even notice given to them and the advocate of owner to produce; the question of summoning several RTOs or any particular RTO records of its jurisdiction to submit before the Court to show of no license in his name doesn't arise. There is when no license to R.1 driver, practically expecting of impossibility so to prove of no license by summoning records for that, but for to say adverse inference to draw against the owner from the facts on hand. Having regard to the above it establishes that he got conscious knowledge in entrusting vehicle to a driver with no license as proved from the factual matrix of the case to say that the insurer is not liable to say no other better case can be expected to say in entrusting vehicle to a driver by a person not possessed any license and come with a claim as if there is license instead of saying not having conscious knowledge of the fact. Accordingly, point 1 is answered. POINT -2:</p><p>14. Accordingly and in the result, the appeal is allowed while confirming the quantum of compensation of Rs.3,00,000/- with interest at the rate of 7.5% per annum, with proportionate costs; set aside the findings of the tribunal so far as the joint and several liability of the insurer to indemnify the insured; by holding that the insurer is not liable but for by permitting the claimants to withdraw half of the amount already in deposit made by the insurer (appellant) as per the order passed in M.A.C.M.A. M.P No.2921 of 2012 dated 08.06.2012, for the insurer to recover the same from the owner of the vehicle by filing execution proceedings before the tribunal and seek for direction to the RTA not to transfer registration of the vehicle unless already transferred and also for attachment of property of the owner/ insured for assurance of recovery. Rest of the amount due to the claimants be recovered from the owner of the vehicle (2nd respondent in claim petition). There is no order as to costs of the appeal.</p><p>15. Miscellaneous petitions, if any pending in this appeal, shall stand closed. _________________________ Dr. B. SIVA SANKARA RAO, J Date:</p><p>21. 01-2014',
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$desc = array(
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		'id' => '1122811',
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		'appellant' => 'Bajaj Allianz General Insurance Company',
		'authreffered' => null,
		'casename' => 'Bajaj Allianz General Insurance Company Vs. Gandam Somulamma and 6 Othe',
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		'court' => 'Andhra Pradesh',
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		'judgement' => '<p>HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF201221-01-2014 Bajaj Allianz General Insurance Company Ltd., Rep. by its General Manager, VIP Road, CBM Compound, Visakhapatnam. ...APPELLANT Gandam Somulamma &amp; 6 others ...RESPONDENTS Counsel for Appellant: Sri T.Mahender Rao Counsel for Respondent Nos.1 to 5 : M/s Rama Pallapothu HEAD NOTE: ?.Cases referred 1.2008 (1) LS-SC-177 2.1965 (1) All. E.R-563 3.1963 (2) All.E.R-432 4.1969 (1) All.E.R-555 5.1995 ACJ366(SC) 6.2013 ACJ1403= (4) ALT35(SC) 7.2009 ACJ12988.2003 ACJ129.2011 (8) Scale 240 10.2006 ACJ139811.2003 (9) SCC60612.AIR2009SC20813.2004 (3) SCC297- 2004-ACJ-1 14.2006 (4) SCC25015.2004 (13) SCC224= 2004-SAR (Civil) 290 16.2007 (10) SCC650= 2007 (4) Scale 292 17.2008 (1) LS-SC-177 18.1997 (7) SCC-558 19.2007 (13) SCC24620.2008 (1) Scale 531 21.2008 (1) Scale 727 22.2008 ACJ65423.JT-2003 (2) SC-595 =2003-ACJ-611=2003-ACT-611(SC) 24.2008-ACJ-1498 25.AIR2007SC197126. Appeal (Civil) C.C. No.10993 of 2009 27.2010 (5) ALT10528.2005 (4) ACJ72129.AIR2011SC1234= 2011 (2) SCJ63930.2013 (7) SCC62HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.NO.1505 OF2012</p>JUDGMENT<p>: The 3rd respondent to the claim petition is no other than the insurer of crime auto (bearing No.AP16Y6612 of 2nd respondent driven by 1st respondent, having been aggrieved by the award of the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (FTC), Krishna District, at Machilipatnam (for short, 'Tribunal') in M.V.O.P.No.458 of 2008 dated 21.02.2012, awarded compensation of Rs.3,00,000/- (Rupees three lakhs only) as prayed for with interest at the rate of 7 1/2% per annum against the respondents 2 and 3 who are owner and insurer with joint and several liability, filed the appeal seeking to set aside the finding of the tribunal and exempt the insurer - respondent No.3 from the liability saying the respondent No.2 owner of the vehicle is only liable for paying the compensation.</p><p>2. Heard Sri T.Mahender Rao, learned counsel for the appellant. The respondents 6 and 7 herein who are the respondent Nos.1 and 2 to the claim petition (driver and owner of the auto), were served with notice are called absent with no representation. The respondent Nos.1 to 5 herein who are the claimants in the claim petition represented by their advocate M/s.Rama Pallapothu.</p><p>3. In fact the counsel for the said claimants having submitted earlier that for this Court while sitting in appeal there is nothing to interfere, taken time to submit further arguments to dated 09.12.2013 from 06.12.2013 and did not appear later even the matter was again posted to 12.12.2013. Hence taken as heard the respondent Nos.6 and 7 and further arguments of the respondent Nos.1 to 5. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal. 3(a). The contentions in the grounds of appeal as well as oral submission during the hearing in nutshell of the insurer are that the tribunal is erred in its finding at para No.23 fastening joint liability despite the auto with seating capacity of 1+3 passengers was overloaded with as many as 12 passengers other than driver and from the fact that the 1st respondent-driver not at all possessed driving license and he so deposed having been examined RW.3 at the instance of the insurer after the evidence of RW.2 owner of the vehicle with a version he has gone through the Xerox copy of driving license of the 1st respondent and permitted to drive and furnished said Xerox copy to the insurer and not having any copy with him to file. The driver as RW.3 categorically deposed that he has not having any driving license and he did not apply and he did not give any copy of such license to owner. It is the further contention that the tribunal went wrong in saying that it is the onus of the insurer further to examine the RTO authorities concerned in proof of respondent No.1- driver has no driving license, as such the respondent did not discharge the burden, thereby in holding the insurer also liable. It is also the contention that from the factual matrix even it is proved, said finding of the tribunal is contrary to law, weight of evidence, probabilities of the case and erroneous outcome in fixing liability on the respondent No.3-insurer despite proved violation to the terms of the policy saying for non examination of RTO concerned without looking into what more left even from driver deposed and thereby the award of the tribunal is sought to be set aside and the insurer is to be exonerated particularly by relying upon Sardari vs. Sushilkumar1. On the facts from the tractor driver admitted that no license ever possessed and does not know how to drive the tractor that caused the accident that held exonerated the insurer from the breach of Section 3 of the A.P. Motor Vehicles Act in entrusting the vehicle to a driver without no license by the owner. It is also contended that awarding of Rs.3,00,000/- as prayed for with interest at 7 1/2% per annum is also on high side and hence sought to fix the compensation lower to it justly and reasonably without liability on the insurer.</p><p>4. Now the points that arise for consideration in the appeal are:</p><p>1. Whether the compensation awarded by the Tribunal only against the owner by exempting the insurer from the liability is unsustainable and the quantum of compensation awarded is also not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?.</p><p>2. To what result?. POINT-1:</p><p>5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 01.08.2007 the deceased went to Guduru to attend coolie work and after completion of the work, he was while returning to Bandar in the crime auto bearing No.AP16 6612, when the auto reached at Chittigudur Village at 4.30 pm due to the 1st respondent who is the driver of the crime auto, drove in a rash and negligent manner in high speed and lost control over the auto, it turned turtle in which accident the deceased and other occupants of the auto sustained grievous injuries. Immediately, the deceased was shifted to Government Hospital, Machilipatnam and while undergoing treatment he was succumbed to the injuries on 04.09.2007 at 5.10 pm. The Sub-Inspector of the Police, Gurudu Police at the first instance, basing on the statement of deceased, registered a case in Crime No.69 of 2007 under Section 337 and 338 IPC against the 1st respondent-driver and later altered the section of law on receipt of death intimation of the deceased by adding 304 -A IPC against the driver of crime auto which occurrence is also proved from Ex.A1 FIR, Ex.A4 M.V.I report and Ex.A6 charge sheet and evidence of P.W.1 as concluded by the tribunal. The tribunal ultimately concluded that the claim petition is to be allowed by awarding full compensation of Rs.3,00,000/- as prayed for with interest at the rate of 7 1/2% per annum from the date of filing of claim petition till realization with costs, directing the respondents 1 to 3 i.e., driver, owner and insurer of the auto covered by Ex.B1 policy to deposit the compensation amount with interest thereon with costs within 30 days from the date of this award.</p><p>6. From the above factual matrix of case, the accident was the result of rash and negligent driving of the 1st respondent-driver of crime auto (bearing No.AP16Y6612 belongs to 2nd respondent-owner insured with 3rd respondent-insurance company proved. It also proved that the auto was overloading against the capacity of three passengers with 12 passengers as held by the Tribunal in para No.10. Thus there is nothing to interfere by sitting in appeal so far as rash and negligent driving but for a quantum of compensation and on liability of insurer.</p><p>7. Now coming to the quantum of compensation under dispute concerned before coming to decide, what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James2, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what compensation would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and should neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly3 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver4 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi v. Pest Control (India) Private Limited5 at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.</p><p>8. In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh v. Rajbir Singh6 at paras-1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation7 and Nagappa v Gurudayal Singh8 that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. The expression 'just compensation' has been explained in Sarla Verma`s case (cited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just compensation' is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation.</p><p>9. From the above legal position, coming to the quantum of compensation concerned, there is no appeal or cross objections by the claimants who are respondent Nos.1 to 5 and thus though they claimed that the quantum is low and requires to increase, they are not entitled so to say from well settled expression of the Apex Court in Ranjane Prakash Vs. Divisional Manager9 following the earlier expressions in Oriental Insurance Company Limited V. R.Swaminathan10 at para No.5 by referring to the earlier expression in Benarsi Vs. Ram phaul11 that increasing of compensation amount to the claimants with no cross objections, beyond amount awarded by the Tribunal in the appeal filed by the Insurance Company does not arise.</p><p>10. Now coming to the compensation awarded of Rs.3,00,000/- whether on higher side concerned; the deceased was aged about 50 years and the income of the deceased taken by the tribunal is at Rs.3,000/- per month X12 Rs.36,000/- per annum, as the dependants are five in number; as per Sarla Verma's case besides the mutliplier applicable is 11, personal expenses of deceased to be taken is only 1/4th. Then it comes to Rs.2,97,000/-. In fact the prospective earning capacity to be taken to increase is 15% thereon from the age of the deceased about 50 years besides consortium to the wife of deceased Rs.1,00,000/-, Rs.25,000/- towards funeral expenses, Rs.5,000/- the minimum towards for loss of estate and for love care and guidance to the two minor children claimant Nos.4 and 5 even awarded Rs.20,000/- by following the three bench expression of Apex Court Rajesh (supra), the claimants are entitled to more than four and half lakhs, but for no cross objections to confirm the same with interest at the rate of 7 1/2% per annum. Thus, on the quantum of compensation and rate of interest for this Court while sitting in appeal there is nothing to interfere.</p><p>11. Now coming to decide whether the insurer can be exonerated from liability to indemnify the insured to the third party claimants for the driver not having any license besides overloading from which the accident resulted concerned: i) No doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala &amp; Others12, the two judge bench of the Apex Court in this decision by referring to National Insurance Company Limited Vs. Swaran Singh &amp; Others13 apart from other expressions in National Insurance Company Limited Vs. Kusum Rai &amp; Others14 and Oriental Insurance Company Limited Vs. Nanjappan &amp; Others15 and Ishwar Chandra &amp; Others Vs. Oriental Insurance Company Limited &amp; Others16 held that the insurer is not liable to indemnify the owner, when the driver has no license to drive the crime vehicle. ii) In Ishwar Chandra (supra) it was held by the two judge bench that the driver's license when expired 30 days prior to the date of accident and no renewal application filed even by date of accident to say a renewal dates back to date of application, it is suffice to hold the driver has no license as on date of accident. iii) In NIC Vs. Kusumrai (supra) it was held by the two judge bench that, the vehicle was used as taxi (commercial) and the driver is required to hold appropriate license but not having valid commercial vehicle license and from that breach, the insurer is held entitled to rise the defence. iv) In Sardari vs. Sushilkumar17- the facts show one Jageeru, Tonga driver on 10-2-85 met with accident when it colluded with tractor and he later was expired on 15-2-85 and the Insurance Company in the counter contended that the driver of the tractor did not hold valid and effective license and there is no liability to indemnify. In the course of trial, the said tractor driver Sushil Kumar categorically deposed that he does not know how to drive a tractor as he never even tried to learn driving tractor, that he had not been possessing any license to drive a tractor and he did not even apply for licence. It was therefrom, the Tribunal held that admittedly when the driver of crime tractor was not knowing to drive tractor and not even having any license at all to drive, the Insurance Company is not liable to indemnify owner of the tractor. The appeal was also dismissed confirming the said finding of the tribunal when preferred by driver and owner of the tractor for no appeal by claimants. In that factual context it was observed in para 6 of the judgment by the Supreme Court that, time and again made distinction between cases where III party is involved Vis--vis owner of the vehicle was involved. The object of Sections 147 &amp; 149 of the MV Act enacted was social justice doctrine envisaged in the preamble of the constitution, however, the Act itself provides where the insurance company can avoid its liability. The avoidance of such liability by insurer largely depends upon violation of conditions of the Insurance Contract. Where the breach is ex-facie apparent from the record, court need not fasten liability on the insurer. In certain situations, however, the court while fastening liability on insured, may direct the insurer to pay to the claimants and recover the same from the insured. v) In UIIC Vs. Gianchand18, it was observed that when the insured handed over the vehicle to an un-licensed driver, insurer would be exonerated from liability to meet III party claims. vi) In Swaran Singh (three judges bench-supra) it was laid down that the owner of the vehicle has a responsibility to see that no vehicle is driven except by a person who doesn't satisfy Sections 3 &amp; 4 of the MVAct. In a case where the driver admittedly did not hold license and the same was allowed consciously to be driven by the owner of the vehicle by such person insurer in its defence succeed to avoid liability. The matter, however, may be different where a disputed question of fact arises as to driver had a license or owner committed a breach of the policy terms by consciously allowing a person to drive without having a valid driving license. vii) In NIAC Vs. Prabhulal19 it was a claim arisen out of Consumer District Forum holding no liability of the insurer against the National Consumer Commission's verdict fixing responsibility. viii) In Prem Kumari Vs. Prahlad Dev20 it was also observed that owner of the vehicle cannot contend no liability to verify the fact as to whether the driver possessed a valid license or not. ix) In OIC Vs. Prudhviraj21 on facts from the RTA record shows the driver was not having any driving license for the owner to permit the driver to drive the vehicle and for that accident not chosen to make liable the insurer. x) By referring all these expressions at Para 9 of the Judgment of the Apex Court in Saradari (supra), the Apex Court did not choose to interfere with the finding of the tribunal confirmed by the High Court, in not chosen to make liable the insurer. xi) In Surina Durvasulu Vs. Bhavanarayana Murthy22 Para 14 it was held that when the driver had no valid driving license to drive tractor and the charge sheet also mentions a penal provision for violation of the same in driving with no license and nothing deposed by owner despite contention of Insurance Company, that he has taken all necessary precautions to entrust the vehicle to a person who had valid driving license, insurance company not made liable holds good. xii) It is clear from the decisions that once there is material to say conscious knowledge of owner of defective or no license of driver, insurer need not be made liable. In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the law in this regard referring to United Insurance Co. Ltd Vs. Lehru23 among others and the principle laid down therein was approved and reiterated even in the subsequent decisions including the above but for distinguishing for the facts on hand in each of the cases as held by the Apex Court in NIC Vs. Geetabhat24 that the principle is the same but for any deviation from factual matrix of each case if at all to say non- liability. xiii) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan (supra), Geetabhat (supra) and several other expressions in the cases relating to no license at all or imperfect and no valid license held that even it is one of breach of terms of policy and violation of rules, since the policy otherwise covers risk, though denied liability from no valid license, in the absence of showing such violation is to the conscious knowledge of insured-owner, insurer is to pay and recover. xiv) Even in Geetabhat (supra) it was held reiterating the principle laid down in the above decisions after referring the above among other several decisions that when insurer seeks to avoid liability on ground of fake or no license of driver of the vehicle of the insurer, but for saying no license issued by RTO in name of the driver, even taken alleged license as fake, insurer has to pay to the third party claimants and recover from insured. xv) In fact, in Swaran Singh's case (supra), the Apex Court observed that it is the obligation on the part of owner to take equitable care to see that the driver had an appropriate license to drive the vehicle. The question as regards the liability of owner vis--vis the driver being not possessed of a valid license concerned, at para-89, it was observed that Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of this Section. The various types of vehicles described for which a driver may obtain a license for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. xvi) Furthermore, in Oriental Insurance Company Limited Vs. Brij Mohan &amp; Others25 while holding that insurance company has no liability, however, invoked Article 142 and 136 of the Constitution in directing the insurer to pay first and recover from the tractor owner. It was in fact on a close reading discloses not a mere case of exercise of exclusive jurisdiction of the Apex Court from the fact that it contains the general observation that interest of justice would be sub-served in giving such a direction to pay and recover having regard to the scope and purport of Section 168 of the MV Act,1988. xvii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni &amp; Another26, the Apex Court doubted the correctness of the directions issued in various judgments to the insurer to pay even though not liable and therefrom formulated issues for consideration by a larger bench xviii) In fact, by referring to the above expression in Swaran Singh's case (supra), this (Andhra Pradesh) Court in an appeal by insurance company, observed in New India Assurance Company Limited, Tirupati, Vs. G.Sampoorna &amp; Others27 from paras-6 onwards that insurer raised the contention of driver was not having valid license at the time of accident and examined employee of Regional Transport Office, besides employee of the insurance company and the owner of the vehicle did not speak anything. No evidence produced by claimants to show that there was a license or it was even if lapsed renewed later. However, the Tribunal held that even in the absence of driving license, insurance company has to pay and recover rather than escaping from liability for the claimants are not parties to the contract of insurance of the vehicle between insurer and insured. xix) This (High) Court therefrom held that the conclusion is not acceptable from reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala' case (supra) in saying the statute itself excludes insurer's liability in such a case, thereby the fact whether the claimant being a third party is not a privy to the policy between insurer and insured has no relevance. It is however, by referring to the Swaran Singh (supra) apart from the earlier expressions referred therein, observed that the proposition laid down in Swaran Singh (supra) is referred to a larger bench and it is still pending. In Swaran Singh (supra) it was held that the Tribunals and the Courts in exercise of their jurisdiction to issue any direction for pay and recovery, consider, depending upon facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance under Section 149(2)(a)(ii) of the Act, the insurance company shall be entitled to realise the award amount from owner or driver, as the case may be, in execution of the same award in view of Sections 165 and 168 of the Act. xx) It is from this, this Court in Sampoorna (supra) from para-13 onwards observed that &quot;.In my opinion from the afore-extracted passage of the judgment, it is evident that direction to the insurance company to pay the compensation does not automatically follow in every case where the insurance company is found not liable. The same depends upon the fats and circumstances of each case. In all the aforementioned cases, which were referred to by the Supreme Court, directions were given on the facts of each case and considered the fact that the provisions of the Act dealing with insurance and payment of compensation are beneficial in nature&quot;.. In paragraph 81 of Swaran Singh (supra), it was observed that right to avoid liability in terms of Section 149(2) is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence; but it is another thing to say that despite the fact that its defence has been accepted, having regard to facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. xxi) The Supreme Court in subsequent judgments have not treated the previous judgments including Swaran Singh (supra) as laying down unexceptionable principle that in every claim brought before the Tribunal, the insurance company should be directed to pay compensation amount first even though its defence was found accepted, as evident from some of the later expressions like in National Insurance Company Limited Vs. Bommithi Subbhayamma &amp; Others28. xxii) By referring to the above, from paragraph 20, this (High) Court in Sampoorna (supra) observed that on the strength of the discussion undertaken above, it is not possible for this Court to treat the judgment in Swaran Singh (supra) as containing mandatory directions to Tribunals and Courts to invariably direct the insurer to pay at first instance and recover from owner of the vehicle even though they are held not liable. Pending resolution of the issues by the larger bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (supra) as leaving discretion to the Tribunals and the Courts to give appropriate directions depending upon facts and circumstances of each case. xxiii) By applying the ratio in Swaran Singh (supra) at para-21 of the judgment, this (High) Court held that some amount that was already deposited by the insurance company, which holds good to withdraw, and for the rest, insurance company is not liable. In fact besides Lehru (supra), Swaran Singh's (supra) and Nanjappan (supra) in holding that from lack of license or fake license or imperfect or defective license, in the absence of proof of conscious knowledge of owner, the insurer can be ordered firstly to satisfy the claimants by indemnifying the owner and then recover from owner and driver; i) Even in the subsequent expressions of the Apex Court in Kusumlatha and others V. Satbir and Others29 it was held that the Tribunal has got inherent power to issue such directions to insurer to pay and recover. ii) Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company30 a two judge bench of the Apex Court held that even though the insurer has taken the defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licensed in during the crime vehicle when met with accident, third party has a statutory right to recover compensation from insurer and it was for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any breach of condition of Insurance policy.</p><p>13. From the above legal propositions in the factual matrix of the case and from the contentions of the insurer-appellant, RW.2 owner though deposed that he verified from xerox copy supplied by the R.1 - RW3 of the license possessed by him found he got license and he handed over the same to the insurer. However to believe his version, he did not file such a Xerox copy, if at all, any copy he received and given copy of it to the insurer and in the absence of which, the claimant whatever copy he received from the driver handed over to the insurer and not possessed copy of it to file is unbelievable but for to say apparently an introduced version to get over from liability if possible by such a say in coming to the witness box as if he entrusted with no conscious knowledge of no license to the driver. Here from the expressions of Swaran Singh's (supra), Lehru (supra) apart from the later decision in Nanjappan shows the knowledge of the owner is one of the pre requisites in exercising of judicial discretion by the Tribunal or no interference with any finding of the tribunal by appellate or revisional authority by sitting against. Here the version of the owner as RW.2 of there is no conscious knowledge of the respondent No.1 has no driving license is also belied by the evidence of driver R1 as RW.3 by coming to the witness box that he never informed of possessed any driving license for driving the transport LMV crime auto. When such is the case and when he deposed that he did not hand over any license to the R.2 owner from not possessed any driving license; the question of handing over any license and its perusal, much less to hand over to insurer by insured does not arise. Thus, even no RTO was examined other than the driver, which is when suffice to say conscious knowledge of owner, the burden of the insurer is discharged. Further, the insurer in discharge of the burden even issued notice to the owner that is marked. Ex.B4 to Ex.B8 are the copy of the legal notice with receipt, notices issued to the advocate for the owner before the trial Court to produce any copy of driving license. Thus, there is nothing remains for the tribunal to comment on non examination of RTO concerned to prove that the driver was not possessing any driving license. It is in fact to be kept in mind in appreciation of evidence that a positive evidence can be brought on record to prove or to disprove any fact or to say left not proved as envisaged by Section 3 of Evidence Act. However, coming to negative facts of no license by saying the driver has no license at all and the driver and owner failed to produce even notice given to them and the advocate of owner to produce; the question of summoning several RTOs or any particular RTO records of its jurisdiction to submit before the Court to show of no license in his name doesn't arise. There is when no license to R.1 driver, practically expecting of impossibility so to prove of no license by summoning records for that, but for to say adverse inference to draw against the owner from the facts on hand. Having regard to the above it establishes that he got conscious knowledge in entrusting vehicle to a driver with no license as proved from the factual matrix of the case to say that the insurer is not liable to say no other better case can be expected to say in entrusting vehicle to a driver by a person not possessed any license and come with a claim as if there is license instead of saying not having conscious knowledge of the fact. Accordingly, point 1 is answered. POINT -2:</p><p>14. Accordingly and in the result, the appeal is allowed while confirming the quantum of compensation of Rs.3,00,000/- with interest at the rate of 7.5% per annum, with proportionate costs; set aside the findings of the tribunal so far as the joint and several liability of the insurer to indemnify the insured; by holding that the insurer is not liable but for by permitting the claimants to withdraw half of the amount already in deposit made by the insurer (appellant) as per the order passed in M.A.C.M.A. M.P No.2921 of 2012 dated 08.06.2012, for the insurer to recover the same from the owner of the vehicle by filing execution proceedings before the tribunal and seek for direction to the RTA not to transfer registration of the vehicle unless already transferred and also for attachment of property of the owner/ insured for assurance of recovery. Rest of the amount due to the claimants be recovered from the owner of the vehicle (2nd respondent in claim petition). There is no order as to costs of the appeal.</p><p>15. Miscellaneous petitions, if any pending in this appeal, shall stand closed. _________________________ Dr. B. SIVA SANKARA RAO, J Date:</p><p>21. 01-2014',
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LAW: Section 3, Section 337, Section 166 of the Act, Section 3 of the Act, Section 10 of the Act, Article 142 and 136 of the Constitution, Section 168, Section 3 of the Act, Section 149(2)(a)(ii, Section 149(2, Section 3 of Evidence Act

ORG: HONOURABLE Dr., RAO, Bajaj Allianz General Insurance Company Ltd., CBM Compound, Gandam Somulamma &, RESPONDENTS Counsel, M/s Rama Pallapothu, ALT35(SC, RAO, the Motor Accidents Claims Tribunal-cum-VI Additional District, FTC, Machilipatnam, Court, 09.12.2013, No.23, Xerox, Xerox, RTO, RTO, Sardari, Tribunal, Court, Tribunal, Government Hospital, IPC, M.V.I, Tribunal, Charle, House, The Apex Court, R.D. Hattangadi v. Pest Control, Tribunal, Court, the Apex Court, Rajesh v. Rajbir, Delhi Transport, Nagappa v Gurudayal, Tribunal, Tribunal, Tribunal, the Apex Court, Oriental Insurance Company Limited V., Benarsi Vs, Tribunal, the Insurance Company, Nos.4, Apex Court, Court, National Insurance Company Limited Vs, the Apex Court, National Insurance Company Limited Vs, Singh &amp, National Insurance Company Limited Vs, Kusum Rai &amp, Others14 and Oriental Insurance Company Limited Vs, Ishwar Chandra &amp, Oriental Insurance Company Limited &, NIC Vs, Sardari, the Insurance Company, Tribunal, the Insurance Company, the Supreme Court, III party, Sections 147 &amp, the Insurance Contract, un, Sections 3 &amp, NIAC Vs, Consumer District Forum, the National Consumer Commission's, OIC Vs, the Apex Court, the Apex Court, the High Court, Surina Durvasulu Vs, Bhavanarayana, Insurance Company, the Apex Court, United Insurance Co. Ltd Vs, the Apex Court, NIC Vs, xiv, RTO, the Apex Court, the Central Government, Oriental Insurance Company Limited Vs, Brij Mohan &, the Apex Court, National Insurance Company Limited Vs, Parvathneni &amp, Another26, the Apex Court, Andhra Pradesh) Court, New India Assurance Company Limited, G.Sampoorna &amp, Regional Transport Office, Tribunal, the Swaran Singh, Court, the Supreme Court, Tribunal, The Supreme Court, Tribunal, National Insurance Company Limited Vs, Court, Tribunals and Courts, the Supreme Court, the Apex Court, Tribunal, the Apex Court, United India Insurance Company30, the Apex Court, xerox, Xerox, Tribunal, LMV, R.2, RTO, Court, RTO, RTO, Court, RAO

GPE: Visakhapatnam, Chittigudur Village, insurer.7, Parry v. Cleaver4, Rs.1,00,000/-, Others15, Others16, Ishwar, Jageeru, Tonga, Saradari, Apex, Swaran, Tirupati, Others27, Sampoorna, Others28, Sampoorna, Kusumlatha, Nanjappan, M.A.C.M.A.

CARDINAL: 6, 5, 1.2008, 1, 2.1965, 1, 3.1963, 2, 1, 4, 7.2009, 8), 9, 3, 14.2006, 13, 290 16.2007, 10, 4, 292 17.2008, 1, 18.1997, 7, 19.2007, 13, 1, 1, 727 22.2008, 2, 5, 2, 7, 21.02.2012, three, 2, 3, No.3, No.2, 6, 7, 2, 5, 12.12.2013, 7, 5, 1+3, as many as 12, No.3, 338, 304, 1, B1, three, 12, Three, 7, 5, five, two, 5, three, more than four, two, two, two, one, 15-2-85, 6, 149, three, 4, three, one, 2, one, two, 165, 168, 81, one, two, two, one, 1, half

PERSON: Sri T.Mahender Rao Counsel, Krishna District, Heard Sri T.Mahender Rao, Nos.6, No.1-, Guduru, coolie, Bandar, Machilipatnam, Morris, Ward, Upjohn LJ, Morris, No.12, Bench, Sarla Verma v, Sarla Verma`s, Ranjane Prakash Vs, Ram phaul11, Sarla Verma's, Vidhyadhar Mahariwala &amp, Others12, Kusumrai, Sushil Kumar, Swaran Singh, vii, viii, Prem Kumari Vs, Prahlad, xi, Swaran Singh, xiii, Lehru, Swaran Singh, Nanjappan, Geetabhat, Geetabhat, xv, Swaran Singh's, Others25, xvii, Vidhyadhar Mahariwala', Swaran Singh, Swaran Singh, xx, Swaran Singh, xxi, Swaran Singh, Swaran Singh, Swaran Singh, Swaran Singh, Lehru, Swaran Singh's, Nanjappan, V. Satbir, Swaran Singh's, Lehru, B. SIVA

FAC: Scale 240

DATE: 4) SCC25015.2004, 2007, 2003-ACJ-611=2003-ACT-611(SC, 2009, 4) ACJ72129.AIR2011SC1234= 2011, M.V.O.P.No.458 of 2008, the 1st, 6612, 2007, 30 days, about 50 years, 11, about 50 years, Rs.25,000/-, interfere.11, 30 days, para-89, para-13, 20, para-21, 2012, 01-2014

PRODUCT: Scale 531 21.2008, M/s.Rama Pallapothu.3, Motor Accidents, Rs.20,000/-, Para 9, Para 14, nature&quot, No.1

QUANTITY: 24.2008-ACJ-1498 25.AIR2007SC197126, 10-2-85

MONEY: 27.2010

ORDINAL: 3rd, 2nd, 1st, 1st, 1st, first, 1st, 1st, 2nd, 3rd, third, third, first, third, first, first, first, firstly, third, third, 2nd

PERCENT: 7 1/2%, 7 1/2%, 7 1/2%, 15%, 7 1/2%, 7.5%

TIME: 4.30 pm, 04.09.2007, 5.10 pm

NORP: Others13