Madras High Court
United India Insurance Company Limited vs Smt. Meenakshi on 20 April, 2006
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.801 of 1997 United India Insurance Company Limited, Dharmapuri ...Appellant Vs 1.Smt. Meenakshi 2. Smt. Kaleeswari 3. S.Muniyandi 4. Minor S.Karuppayee 5. Minor s.Mariammal (Minors 4 and 5 represented through their mother and next friend the 1st respondent) 6. Balasubramanian ...Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.288 of 1992, dated 05.09.1995, on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Srivilliputhur. !For Appellant .... Mr.G.Prabhu Rajadurai ^For Respondents .... Mr.A. Sivaji-R1 to R5 R6 served but absent. :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.288 of 1992, dated 05.09.1995, on the file of the Motor Accidents Claims Tribunal(Subordinate Judge), Srivilliputhur. The second respondent in M.C.O.P.No.288 of 1992, is the appellant herein.
Background of the case sans irrelevant facts are as follows:
The accident had occurred on 28.6.1992 at about 2.30p.m., on the Srivilliputhur-Madurai Highways. At the time of accident, the first claimant's husband Sankaralingam was proceeding in his cycle from north to south in the said Highways, a van bearing Registration No.TCT-1672 belonging to the first respondent was driven by its driver in a rash and negligent manner dashed against the said Sankaralingam causing instantaneous death. The legal representatives of the deceased have filed the claim petition claiming a sum of Rs.3,00,000/- towards compensation.
2. The first respondent remained exparte.
3. The second respondent in his counter has contended that only due to the contributory negligence of the cyclist Sankaralingam, the accident had occurred and that the driver of the van was having a valid driving licence from 21.12.1992 itself and on the date of accident, the driver of the van had no valid driving licence to drive the van.
4. Before the learned Tribunal, P.W.1 and P.W.2 were examined and Exs.P.1 to P.5 were marked on the side of the claimants and on the side of the respondents, R.W.1 was examined and Ex.R.1 and Ex R2 were marked.
5. After going through both oral and documentary evidence, the learned Tribunal has come to a conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the van bearing Registration No.TCT- 1672 and has awarded Rs.1,59,000/- towards compensation to the claimants with 12% interest from the date of petition till the date of realisation with costs.
6. Aggrieved by the award of compensation, the Insurance Company / the second respondent has preferred this appeal.
7. Now, the point for determination in this appeal is whether the driver of the van had a valid driving licence to drive the van bearing Registration No.TCT -1672 which involved in the accident, on the date of the accident and whether there was any contributory negligence on the part of the cyclist Sankaralingam, who died in the accident?
The Point:
8. Admittedly, on the date of the accident, the driver of the van bearing Registration No.TCT-1672 which involved in the accident had a valid driving licence to drive the light motor vehicle. The xerox copy of the driving licence of the driver, who drove the van bearing Registration No.TCT 1672 which involved in the accident was produced before the Tribunal and exhibited as ExR2, wherein there is an endorsement to drive the van by the holder of the driving licence from 21.12.1992. So the learned counsel appearing for the appellant would contend that since the accident had occurred only on 28.6.1992, on which date, there was no endorsement in the driving licence in Ex R2 authorising the holder of the driving licence to drive a van and that the Insurance Company is not liable to pay any compensation. But the learned counsel appearing for the appellant would fairly concede that as per the dictum reported in 2004 ACJ 1, (National Insurance Co. Ltd., Vs.Swaran Singh and others), the failure to get an endorsement in the driving licence to drive the vehicle of a different type will not absolve the liability of the Insurance Company indemnifying the insurer wherein it has been held as follows:
Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder to drive the vehicle falling within that class or description.
"Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe the forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) road-roller; and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxicab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', 'motor cycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motor cycle without gear', for which he has no licence. Cases may also arise where holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motor-cab' or 'omnibus' for which he has no licence. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
We have construed and determined the scope of sub-clause(ii) of sub- section (2)(a) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches or inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties."
On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of the insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the Civil Court".
9. So in this case also, the fact that there was no endorsement in the driving licence in Ex R2 for the driver of the vehicle which involved in the accident to drive a van will not absolve the Insurance Company from indemnifying the insurer. The learned Tribunal in its award at page 4 has discussed this point elaborately and has come to a conclusion that omission in getting an endorsement in the driving licence of the driver of the vehicle which involved in the accident will not absolve the liability of the Insurance Company from paying the compensation to the insurer because there was no document produced to show that the driver of the vehicle involved in the accident was disqualified from driving any vehicle including the light motor vehicle for which, he had a valid driving licence to drive.
10. The learned counsel appearing for the appellant fairly concedes that he has no dispute with regard to the quantum fixed by the learned Tribunal. Once again, this Court appreciates the fairness of the learned counsel appearing for the appellant Mr.G.Prabhu Rajadurai in admitting that the Insurance Company is liable to pay the compensation, by producing the relevant Judgment in 2004(1)TNMAC 104(supra). This Court records its appreciation for the said learned counsel.
11. Hence, I hold on the point that the failure of an endorsement in the driving licence of the driver of the van bearing Registration No.TCT-1672 which involved in the accident will not absolve the liability of the Insurance Company from paying the compensation to the third party and the award passed in M.C.O.P.No.288 of 1992 on the file of Motor Accident Claims Tribunal(Sub Judge) Srivilliputhur, need not be set aside for the reasons stated in the memorandum of appeal in C.M.A.No.801 of 1997. The point is answered accordingly.
12. In the result, the appeal is dismissed, confirming the award passed in M.C.O.P.No.288 of 1992, dated 5.9.1995, on the file of the Motor Accidents Claims Tribunal( Subordinate Judge), Srivilliputhur. No costs.
sg To The Motor Accidents Claims Tribunal (Subordinate Judge), Srivilliputhur.