Madras High Court
M/S.National Insurance Co. Ltd vs Thiru Govindan ... 1St on 22 August, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.08.2014 CORAM THE HONOURABLE MR. JUSTICE R.SUBBIAH C.M.A.Nos.55 & 2072 of 2014 and M.P.Nos.1 of 2014 M/s.National Insurance Co. Ltd., No.24, Kamaraj Bazarr, Bodinayakanoor, Theni, Tamil Nadu ... Appellant / 2nd Respondent in both CMAs vs. 1. Thiru Govindan ... 1st Respondent / Petitioner in CMA No.55/2014 2. Tmt. Krishnaveni 3. Miss Vijayalakshmi 4. Miss.Shanthi 5. Minor Nithiya 6. Minor Santhosh ... Respondents in CMA No.2072/2014 (Minors 5 & 6 represented by their next friend mother 2nd respondent) 7.Thiru S.Chandrasekar ... Respondent in both CMAs Civil Miscellaneous Appeals have been filed under Section 173 of Motor Vehicles Act against the judgment and decree passed in MCOP Nos.746 & 747 of 2008 on 25.09.2012 on the file of the learned Motor Accident Claims Tribunal (I Additional District Judge) at Salem District. For appellant : Mr.J.Chandran in both CMAs For respondents : Mr.R.Nalliyappan for in both CMAs R1 to R6 JUDGMENT
Both these appeals have been filed by the appellant/insurance company challenging the finding rendered by the tribunal, in and by award dated 25.09.2012 made in MCOP Nos.746 & 747/2008 on the file of I Additional District Judge, Motor Accident Claims Tribunal, Salem, directing the insurance company to deposit the compensation amount and permitting them to recover the same from the owner of the vehicle as well as questioning the quantum of compensation awarded by the tribunal.
2. Since both these appeals arise out of a common award passed by the tribunal in and by award dated 25.09.2012 made in MCOP Nos.746 & 747/2008, they are disposed of by this common judgment.
3. The first respondent in CMA No.55/2014 is the injured victim. The respondents 2 to 6 in CMA No.2072 of 2014 are the LRs of the deceased who had died in the accident involving the vehicle insured with the appellant/insurance company. It is the case of the claimants before the Tribunal that on 03.12.2007, while the deceased Kandasami and the injured claimant were standing on the mud portion of the road, they were hit by a JCB bearing Registration No.TN 60X 2497. In the said accident, one of the persons namely Kandasami had died and another namely Govindasami had sustained injury. Hence, the injured claimant has made a claim petition in MCOP No.746 of 2008 (CMA No.55/2014) for a sum of Rs.4,00,000/- and the LRs of the deceased has made a claim petition in MCOP No.747 of 2008 (CMA No.2072/2014) for a sum of Rs.7,00,000/- before the Tribunal.
3. The claim petitions were resisted by the insurance company mainly taking a defence that at the time of accident, the driver of the JCB did not have a valid driving licence and there is a violation to the terms and conditions of the policy and as such the insurance company is not liable to pay the compensation amount.
4. In order to prove the defence on the side of the insurance company, two witnesses were examined as R.W.1 and R.W.2 and seven documents were marked as Exs.R1 to R7.
5. The Tribunal, after considering the entire evidence on record has come to the conclusion that there is a violation to the condition of the policy since the vehicle was driven by the driver who did not have a valid driving licence. After having come to such a conclusion, the tribunal has directed the appellant/insurance company to pay the entire compensation to the respondents/claimants and then permitted to recover the same from the owner of the vehicle. Aggrieved over the said finding, the present appeals have been filed by the Insurance Company.
6. Heard the submissions made by the learned counsel on either side and perused the materials available on record.
7. It is the submission of the learned counsel appearing for the appellant/insurance company that the tribunal having come to the conclusion that there is a violation to the condition of the policy, ought not have directed the insurance company to pay the compensation and on the other hand the tribunal straight away ought to have directed the owner of the vehicle to pay the compensation amount. Therefore, by setting aside the direction given by the Tribunal as against the insurance company to pay the compensation amount, the owner of the vehicle may be directed to pay the said compensation amount.
8. Per contra, learned counsel appearing for the respondents/claimants made his submission supporting the award passed by the tribunal.
9. In my considered opinion, as per the dictum laid down by the Hon'ble Supreme Court in the case of S.Iyyapan vs. United India Insurance Co. Ltd, reported in (2013) 7 Supreme Court Cases 62, non-possession of the valid driving licence cannot be a ground for the insurance company to disown its liability to pay the compensation to third party. At the maximum, the tribunal can give liberty to the insurance company to recover the compensation amount from the owner of the insured vehicle after paying the same to the victim / claimant and in the instant case, the tribunal itself has given liberty to the insurance company to recover the compensation amount from the owner of the vehicle . In view of the dictum laid down by the Hon'ble Supreme Court in the decision cited supra, this Court is not inclined to set aside the finding of the Tribunal.
10. In so far as the quantum of compensation is concerned, I find that in MCOP No.746 of 2014 (CMA No.55 of 2014), the tribunal has awarded only a sum of Rs.76,963/- to the injured claimant. Considering the nature of injury sustained by the victim, the said amount cannot be said to be on the higher side. Similarly, in respect of the claim made by the LRs of the deceased in MCOP No.747 of 2014 (CMA No.2072 of 2014), the tribunal has awarded only a sum of Rs.6,34,000/-. Considering the fact that the accident had entered in a fatal death, the total sum of Rs.6,34,000/- awarded by the tribunal cannot be said to be on the higher side and hence I am not inclined to interfere with the amount of compensation awarded by the tribunal.
11. In the result, the compensation awarded by the Motor Accident Claims Tribunal (I Additional District Judge), Salem dated 25.09.2012 made in M.C.O.P.Nos.746 & 748 of 2008 are confirmed and the Civil Miscellaneous Appeals are dismissed. No costs. Consequently, connected miscellaneous petition are closed.
12. The appellant/insurance company is directed to deposit the entire compensation amount, less the amount, if any, that has already been deposited, alongwith interest at the rate of 7.5% per annum from the date of petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the respondent/claimant in CMA No.55/2014 is permitted to withdraw the entire award amount alongwith interest. Similarly, in CMA No.2072/2014, the respondents/claimants 2 to 4 herein are permitted to withdraw their respective shares along with accrued interest on the basis of apportionment fixed by the tribunal. In so far as the share of the minor claimants 5 & 6 are concerned, the tribunal is directed to deposit the same in any one of the Nationalised Bank, till they attain majority. The 2nd respondent/claimant herein, the mother of the minor claimants is permitted to withdraw the accrued interest, once in three months. The appellant insurance company is also permitted to recover the said amount from the owner of the vehicle insured with them.
22.08.2014 Index:Yes/No rgr To
1.The Motor Accident Claims Tribunal, (I Additional District Judge), Salem District.
2.The Record Keeper, V.R. Records, High Court of Madras.
R.SUBBIAH, J.
rgr C.M.A.Nos.55 & 2072 of 2014 22.08.2014