Madras High Court
The Oriental Insurance Co. Ltd vs ) Mohammed Hussain on 24 June, 2008
Equivalent citations: AIR 2008 (NOC) 2700 (MAD.), 2009 (1) AJHAR (NOC) 165 (MAD.)
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1798 of 2002 The Oriental Insurance Co. Ltd., ... Appellant Vs. 1) Mohammed Hussain 2) V.Sagadeva Rao ... Respondents This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the award dated 17.01.2008 passed in M.C.O.P.No.287 of 2001 by the Motor Accidents Claims Tribunal (Additional District Judge), Dharmapuri at Krishnagiri. For Appellant : Mr.S.Arun Kumar For Respondents : Mr.V.Kumaravelan for M/s.M.Sriram (for R1) Mr.V.Nicholas (for R2) J U D G M E N T
This Civil Miscellaneous Appeal is directed against the award dated 17.01.2002 made by the Motor Accidents Claims Tribunal (3rd Additional District Judge), Dharmapuri at Krishnagiri in M.A.C.T.O.P.No.287 of 2001 directing the appellant herein to pay a sum of Rs.1,13,500/- as compensation to the first respondent/ claimant together with an interest at the rate of 9% per annum from the date of claim till payment and with proportionate costs.
2. The first respondent herein, alleging that he met with an accident on 05.10.1998 at about 6.00 p.m. near Chinnamattarapalli bus stop which resulted in injuries leading to permanent disability, made a claim against the appellant and the second respondent herein for a compensation to the tune of Rs.3,00,000/-. It was his contentin before the tribunal that the motorcycle belonging to the second respondent herein bearing Regn.No.TN-29 U-5604 was the vehicle involved in the accident and that the said motorcycle hit him and caused the accident as its rider rode it rashly and negligently without following the rules of the road. It was his further contention before the tribunal that, while he was walking along the edge of the road, the said motorcycle came there driven by its rider rashly and negligently and hit him which resulted in the injuries noted in the claim petition which, according to him, led to the permanent disability.
3. The owner of the said vehicle, namely the second respondent herein, did not evince interest in resisting the claim and he remained ex-parte before the tribunal. The appellant herein, namely the Oriental Insurance Co. Ltd., alone contested the claim by filing a counter statement. In the said counter statement, besides denying the petition allegations on the merits of the case, the appellant herein also contended that the rider of the motorcycle did not possess a valid driving license and that hence the appellant/insurer was not liable to pay any compensation in terms of the contract of insurance.
4. The tribunal framed necessary issues and conducted trial in which two witnesses were examined as P.W.1 and P.W.2 and four documents were marked as Ex.A1 to Ex.A4 on the side of the petitioner (the first respondent herein). R.W.1 and R.W.2 were examined and Ex.B1 and Ex.B2 were marked on the side of the appellant herein/second respondent before the tribunal. The tribunal considered the evidence after hearing the arguments advanced on either side and upon such a consideration, came to the conclusion that the accident was the result of the rash and negligent driving of the motorcycle belonging to the second respondent herein/ first respondent in the O.P. The tribunal assessed the damages to which the first respondent herein/petitioner was entitled at Rs.1,13,500/-.
5. So far as the contention of the appellant herein/second respondent that the rider of the motorcycle did not possess a valid driving license at the time of accident is concerned, the tribunal held that the onus to prove the absence of driving license and the consequential violation of the policy condition was on the appellant/insurer and that such onus was not discharged. In line with the said finding, the tribunal held that the appellant/insurer was obliged to indemnify the insured, namely the second respondent (owner of the offending vehicle) to the extent of his liability towards the first respondent herein/petitioner which was fixed at Rs.1,13,500/-. Thus, the tribunal has passed an award holding that first and second respondents jointly and severally liable to pay the above said amount and directing them to pay the said amount with an interest at the rate of 9% per annum from the date of claim till realisation along with proportionate costs.
6. The said award of the tribunal dated 17.01.2002 is challenged by the appellant/insurer in this Civil Miscellaneous Appeal not on the question of negligence or the quantum of compensation, but on the question of the liability of the insured in the light of the insurer's contention that there was violation of a condition of the policy.
7. This court heard the submissions made by Mr.S.Arun Kumar, learned counsel representing the appellant, Mr.Kumaravelan, learned counsel representing the first respondent and Mr.V.Nicholas, learned counsel representing the second respondent. The materials available on record were also perused.
8. The insurer of the vehicle involved in the accident who has been held by the tribunal jointly and severally liable along with the owner of the vehicle to pay compensation to the injured claimant has brought-forth this appeal. In view of the limited challenge made to the award, the points that have arisen for consideration are:
1) Whether the rider of the motorcycle involved in the accident did not possess a valid driving license at the time of accident?
2) Whether the appellant/insurer is absolved from its liability to pay compensation to the first respondent/claimant?
3) Whether the appellant/insurer should be directed to pay compensation to the first respondent/claimant at the first instance and recover the same from the second respondent?
9. It is not in dispute that the motorcycle bearing Regn.No.TN-29 U-5604 belonging to the second respondent herein was the one involved in the road accident that took place on 05.10.1998 at about 6.00 p.m. near Chinnamattarapalli bus stop and that the petitioner sustained injuries for which he had made the claim before the tribunal on the basis of his contention that the accident was the result of rash and negligent driving of the said motorcycle by its driver. So far as the question of negligence is concerned, the tribunal has held that the rider of the motorcycle, by name Gajendran was at fault and it was due to his negligence, the said accident occurred. The said finding has not been challenged in this appeal and hence the same has got to be confirmed. There is also no challenge to the quantum of compensation awarded by the tribunal and hence no interference can be made with the same.
10. It is the contention of the appellant that the rider of the motorcycle did not possess valid driving license and hence the appellant/insurer was not liable to pay compensation based on the insurance policy. The learned counsel for the appellant argued that the tribunal committed an error in coming to the conclusion that the appellant/insurer had not discharged its onus by adducing sufficient evidence to prove absence of driving license with the rider of the motorcycle at the time of accident. It is the further contention of the learned counsel for appellant that despite the fact that there was an admission on the part of the rider of the vehicle before the criminal court in the prosecution launched by the police, regarding the accident in question, for offences including one for driving the vehicle without possessing a valid driving license which admission was substantiated by examining R.W.1 and R.W.2 and producing Ex.B1, the tribunal gave a perverse finding as if the appellant/insurer failed to prove its case that the rider did not possess a valid driving license.
11. On the other hand, the learned counsel for the second respondent (owner of the vehicle) would contend that the insurance company who has come forward with a plea that it is absolved of its liability to pay compensation to the victim should prove the absence of driving license by adducing sufficient and proper evidence; that the tribunal, on a proper appreciation of evidence, came to the conclusion that the onus was not discharged and that hence the said finding of the tribunal cannot be interfered with in this appeal. The learned counsel for the first respondent/petitioner, of-course quite naturally, would support the above said contention raised by the learned counsel for the second respondent. Let us now see whether the appellant/insurer has adduced evidence, sufficient enough, to discharge the onus and shift the burden of proof on the other side.
12. The appellant/insurer, besides examining an employee of the appellant, examined the investigating officer also to show that the rider of the motorcycle involved in the accident was prosecuted for driving the motorcycle without possessing a valid driving license also. Ex.B1 is the certified copy of the judgment in the criminal case S.T.C.No.4798/1999 on the file of the Judicial Magistrate, Krishnagiri. The oral evidence of R.W.1 and R.W.2 and Ex.B1 will make it abundantly clear that the rider of the motorcycle made an admission before the criminal court that he rode the motorcycle without possessing a valid driving license and caused the accident due to his negligence.
13. Generally, the judgments of the criminal courts are not relevant and admissible in the trial of civil cases or MCOP cases except to the extent of showing that there was a criminal prosecution and the same resulted in conviction or acquittal. But, it becomes relevant and admissible in case the judgment is based on the plea of guilty not as a judgment of the criminal court but as an admission made before the criminal court. Admissions are best evidence though not conclusive proof the fact admitted therein. The party against whom such an admission is pleaded, shall have a right to adduce evidence to disprove the fact admitted therein to be false. In this case, the oral evidence of R.W.1 and R.W.2 and the admission incorporated in the judgment of the criminal court as evidenced by Ex.B1 are enough to hold that the appellant/insurer has adduced sufficient evidence at its disposal, at last, to dislodge the burden of proof and recast such burden of proof on the opposite party. Curiously, in this case, neither the first respondent/claimant nor the second respondent/owner of the vehicle chose to adduce evidence to discharge the said burden cast on them. Under such circumstances, this court accepts the contention of the learned counsel for the appellant that the finding of the tribunal in this regard is erroneous and liable to be interfered with by this court.
14. The learned counsel for the appellant also drew the attention to the admitted fact that the rider of the motorcycle by name Gajendran was none other than the brother of the second respondent herein. The second respondent who is placed in a better position to prove that the rider of the motorcycle did possess a valid driving license, had not chosen to lead such evidence. Under such circumstances, this court comes to the conclusion that the rider of the motorcycle did not possess valid driving license at the time of accident. Point number one is answered accordingly.
15. The next question to be determined is whether the insurer is completely absolved of its liability under the insurance policy. In a series of cases, it has been held that the statutory scheme providing compulsory insurance to the motor vehicles is intended to benefit the victims of the accidents and that the provisions relating to the scheme should be liberally construed so that the statutory right conferred to such victims shall not be denied or diluted. That is why in all such cases, it has been held that the insurer's liability towards the third party victims is absolute. In case of any violation of any condition of the contract of insurance enabling the insurer to rescind the contract or that by virtue of such violation the insurer could have rescinded the contract, the courts have adopted the method of directing the insurer to satisfy the claim of the third party victims at the first instance and then recover the amount from the insured in the very same proceeding by levying execution without having the necessity to go for a separate proceeding.
16. The learned counsel for the appellant, however, would contend relying upon the observations made by the Hon'ble Apex court in "National Insurance Co. Ltd. V. Swaran Singh & Others" reported in 2004(1) TN MAC 104(SC) argued that when there is a willful violation of a condition of policy, there would not be any question of directing the insurer to satisfy the award at the first instance and then recover the amount from the insured. The learned counsel submitted that the second respondent in allowing his brother to ride the motorcycle knowing fully well that he was not possessing a valid driving license, had committed willful violation of a policy condition and hence the insurer should be absolved of the liability even towards the third party victim. This court is not in a position to accept such a far reaching proposition. In fact, in the case relied on by the learned counsel for the appellant also, ultimately the insurer was directed to satisfy the claim and then recover the amount from the insured.
17. At the cost of repetition, this court wants to emphasize the point that the scheme of compulsory insurance is aimed at protecting the poor victims keeping in mind the fact that all those who own motor vehicles will not be in a position to satisfy the awards of compensation that may be passed in the motor accident cases. Under such circumstances, the liability of the insurer towards the third party victim, whose interests are sought to be protected by compulsory insurance scheme, should be held absolute. The said statutory protection given to the victims of the motor accidents cannot be taken away or diluted by the fact that there was an act on the part of the insured which amounted to violation of a condition of a policy. At best, such violation will govern the rights of the insured and insurer interse without affecting the rights of the third party victims. The question of willful violation of the policy condition may be relevant in so far as the voluntary coverage of insurance over and above this statutory requirement which shall include own damages and personal accident claim. This is not such a case. Therefore, this court is of the considered view that the appellant's/insurer's liability towards the first respondent (victim) is absolute. At the same time, the appellant having proved that the rider of the motorcycle did not possess a valid driving license at the time of accident, is entitled to a direction incorporated in the award itself enabling it to recover the compensation amount from the second respondent/owner of the offending vehicle after making payment to the first respondent victim.
18. For all the reasons stated above, this court hereby holds that the appellant's/insurer's liability towards the first respondent/claimant is not affected by the fact that the appellant was able to pursue that the rider of the motorcycle did not possess a valid driving license and hence there was violation of a condition of the insurance policy. On the other hand, in view of the proof of violation of a policy condition, the appellant/ insurer shall be entitled to recover the amount paid as compensation to the first respondent/claimant from the 2nd respondent/owner of the vehicle. Such a direction shall be incorporated in the award. Point numbers 2 and 3 are answered accordingly. The award of the tribunal is liable to be modified to the extent indicated above.
19. In the result, this appeal is allowed in part and the award of the tribunal is confirmed subject to a modification that the appellant herein/2nd respondent (insurer) shall pay the award amount to the first respondent herein/claimant at the first instance and then recover the same from the 2nd respondent herein/first respondent (owner of the offending vehicle) by levying execution before the tribunal without having a necessity to file separate suit/original proceeding. Across the bar, it has been brought to the notice of the court that the entire amount had already been deposited and the first respondent (victim) was allowed to withdraw 50% of the said amount. In view of the same, the first respondent victim shall be at liberty to seek payment out of the balance by filing necessary petition before the tribunal.
20. However, there shall be no order as to costs.
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