Madras High Court
M/S.Bajaj Allianz General Insurance ... vs Smt.Vasantha on 14 August, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT JUDICATURE AT MADRAS DATED 14.08.2014 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH C.M.A.No.3025 of 2013 & M.P.No.1 of 2013 M/s.Bajaj Allianz General Insurance Co. Ltd., Prince Towers, 4th Floor No.25/26, College Road Nungambakkam Chennai 600 006 .. Appellant Vs. 1.Smt.Vasantha 2.Poongodi 3.Boopathi .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the judgment and decree in M.C.O.P.No.781 of 2009 dated 04.01.2012 on the file of the Motor Accident Claims Tribunal, Fast Track Court No.2, Poonamallee. For Appellant : Mr.N.Vijayaraghavan For Respondents : Mr.U.M.Ravichandran ----- JUDGMENT
This appeal has been filed by the Insurance Company questioning the finding rendered by the Tribunal in fixing the liability on its part to pay the compensation amount in and by award dated 04.01.2012 made in M.C.O.P.No.781 of 2009.
2. The only ground raised by the learned counsel for the appellant in this appeal is that the driver of the insured vehicle did not have a driving licence at the time of accident. Hence, it is violation to the condition of the policy on the part of the owner of the vehicle and therefore, the Insurance Company is not liable to pay the compensation amount. Though, before the Tribunal, the appellant Insurance Company has produced tangible evidence to show that at the time of accident driver of the insured vehicle did not possess a valid Driving Licence, the Tribunal, by negativing the case projected by the Insurance Company, fixed the entire liability on the part of the Insurance Company to pay the compensation amount to the claimants. Hence, the learned counsel submitted that by setting aside the said finding, Insurance Company has to be exonerated from paying the compensation amount.
3. Heard the learned counsel appearing for the appellant Insurance Company and the learned counsel for the respondents/claimants.
4. Keeping the submissions made by the learned counsel appearing on either side, I have carefully gone through the entire materials available on record.
5. Before the Tribunal it is the case of the respondents / claimants that at the time of accident, the deceased was travelling as a pillion rider in a two wheeler bearing Registration No.TN20-AR-8955 and the rider of the said vehicle drove the vehicle in a rash and negligent manner endangering public safety and thus, caused the accident and in the said accident, the pillion rider sustained grievous injuries and died on the spot. According to the appellant Insurance Company at the time of the accident, the driver of the two wheeler did not have a licence and therefore, the Insurance Company is not liable to pay the compensation amount.
6. On perusal of the evidence adduced on the side of the Insurance Company, I find that in order to prove its defence, a Junior Assistant from the RTO was examined as RW2. RW2 in his evidence had stated that he is not in a position to say whether the licence was issued in the name of the rider of the two wheeler from his office or not. Hence, the Tribunal, by placing reliance on his evidence, has come to the conclusion that the Insurance Company has not established its defence and thus, directed the Insurance Company to pay the compensation amount.
7. But, on perusal of the records, I find that the Insurance Company has issued a notice to the owner of the vehicle calling him/driver of the vehicle to produce the licence of the driver. The same was also received by the owner of the vehicle as evidenced by Ex.R3. In spite of the same, the owner/driver of the two wheeler has not produced the licence. Therefore, in my considered opinion, the Insurance Company has discharged its liability in proving its defence. Under such circumstances, the Tribunal ought to have permitted the Insurance Company to recover the compensation amount from the owner of the vehicle after paying it to the claimants.
8. Though the counsel for the appellant made his submission contending that the Insurance Company has to be totally exonerated from its liability to pay the compensation, I am of the opinion that in view of the recent judgment in S.Iyyapan vs. United India Insurance Co.Ltd, reported in (2013) 7 Supreme Court Cases 62, the Insurance Company cannot deny its liability to pay the compensation to third parties. At the best, they can have a liberty to recover the amount from the owner of the vehicle after paying the same to the claimant. Hence, this Court, by setting aside the findings rendered by the Tribunal, holds that the Insurance Company is entitled to recover the compensation amount from the owner of the vehicle after paying the same to the claimants / respondents.
In the result, the Civil Miscellaneous Appeal is partly allowed. It is represented by the appellant Insurance Company that the Insurance Company has already deposited the entire award amount before the Tribunal. Hence, the respondents 1 and 2 are permitted to withdraw their shares with proportionate interest and cost. So far as the share of the third respondent (minor) is concerned, The Tribunal is directed to invest the same in any one of the nationalized banks in a reinvestment scheme for a period of three years and renewable thereafter. The first respondent/mother of the minor is permitted to withdraw the interest once in three months. The appellant Insurance Company is entitled to recover the compensation amount from the fourth respondent by initiating appropriate proceedings. No costs. Consequently, the connected miscellaneous petition is closed.
14.08.2014 Index: Yes/No Internet: Yes/No gpa Note: Issue order copy on 21.08.2014 R.SUBBIAH,J.
gpa To The Motor Accident Claims Tribunal, Fast Track Court No.2, Poonamallee C.M.A.No.3025 of 2013 & M.P.No.1 of 2013 14.08.2014