Madras High Court
M.Sankar vs M.P.Gnanavel on 30 July, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.07.2014
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
C.M.A.No.3727 of 2013
M.Sankar ... Appellant
vs.
1.M.P.Gnanavel
2.M/s.United India Insurance Company Limited,
Divisional Office,
Katpadi Road, Vellore. ... Respondents
Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicle Act, against the decree and judgment dated 30.08.2010 made in MCOP No.96 of 2006 on the file of the Motor Accident Claims Tribunal (Sub Court), Vellore.
For appellant : Mr.C.Prabakaran
For respondents : Mr.K.G.Senthilkumar for R1
Mr.Srinivasa Ramalingam for R2
JUDGMENT
This appeal has been filed by the claimant before the tribunal questioning the finding rendered by the tribunal in exonerating the 2nd respondent/insurance company from paying the compensation and fixing the liability on the part of the rider of the two wheeler to pay the compensation, in and by award dated 30.08.2010 passed in M.C.O.P.No.96 of 2006.
2. The appellant herein is the claimant before the Tribunal. It is the case of the claimant before the Tribunal that on 25.8.2005, at about 9.30 p.m., while the claimant was walking across the road after getting down from his lorry to call a mechanic near Mukkiyamman Kovil Auto Nagar on MBT Road, Ranipet, a Motor Cycle bearing Registration No.TN23 Q 6234, owned by the first respondent and insured with the second respondent came at a hectic speed being driven in a rash and negligent manner by its rider, dashed against the appellant/claimant herein as a result of which the claimant sustained grievous injuries including multiple injuries on his right leg. Hence, he filed a claim petition as against the owner of the two wheeler as well its insurer, the second respondent/insurance company for a sum of Rs.4,00,000/- towards compensation.
3. The said claim was resisted by the second respondent insurance company by filing counter statement stating that the rider of the TVS Max 100R bearing Registration No.TN23 Q 6234, insured with the second respondent insurance company did not possess a valid driving licence to drive the vehicle. Hence, there is a violation of terms and conditions of the insurance policy. Therefore, the insurance company is not liable to pay the compensation amount. That apart, the insurance company has also taken a defence that the amount of Rs.5,00,000/- claimed by the claimants is extremely on the higher side and thus sought for dismissal of the claim petition.
4. In order to prove the claim, before the Tribunal, the claimant examined himself as P.W.1 besides examining doctor, P.W.2 and marked nine documents as Exs.P.1 to P.9. On the side of the 2nd respondent/insurance company, R.W.1. an officer from the insurance company was examined and two documents were marked as Exs.R1 & R2.
5. The Tribunal, after analysing the entire evidence, both oral and documentary, has come to the conclusion that the accident was the result of rash and negligent driving of the rider of the motor cycle insured with the 2nd respondent insurance company. After having come to such a conclusion, the tribunal has exonerated the 2nd respondent/insurance company to pay the compensation on a reasoning that at the time of the accident, the rider of the two wheeler did not possess a valid driving licence and therefore there is a violation of the condition of the insurance policy and thus directly fixed the liability on the owner of the two wheeler to pay the compensation amount and passed an award for a total sum of Rs.97,000/- alongwith interest @ 7.5% per annum. Aggrieved over the same, the claimant has filed the present appeal.
6. Heard the submissions made by the learned counsel on either side and I have carefully gone through the entire materials available on record.
7. In my considered view, as per the dictum laid down by the Hon'ble Apex 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 Court can give liberty to the insurance company to recover the compensation amount from the owner of the vehicle after paying the same to the victim / claimant. In view of the dictum laid down by the Hon'ble Apex Court in the decision cited supra, the second respondent/insurance company is bound to pay the compensation amount to the appellant/claimant herein. Hence, I am of the opinion that the insurance company could be directed to pay the compensation amount to the claimant and then permitted to recover the same from the owner of the vehicle. Hence, by setting aside the finding rendered by the tribunal in exonerating the 2nd respondent/insurance company from paying the compensation amount, this court directs the 2nd respondent/insurance company to pay the compensation amount to the appellant/claimant herein and permitted to recover the same from the owner of the vehicle, i.e. The 1st respondent herein.
8. In so far as the quantum of compensation is concerned, I find that on account of the accident, the victim had sustained fracture on his right leg and the doctor who has examined him has assessed the disability at 60%. But the tribunal has reduced the disability to 50% and thereby awarded a sum of Rs.50,000/- towards permanent disability at the rate of Rs.1000/- for each percentage of disability which seems to be on the lower side. Considering the facts and circumstances of the case, I am of the opinion that a sum of Rs.1500/- for each percentage of disability could be awarded to arrive at a just and proper compensation, if so, awarded the amount works out to Rs.75000/- [Rs.1500 x 50% disability]. Hence, a sum of Rs.50,000/- awarded by the tribunal under the head disability is hereby enhanced to Rs.75,000/-. Except the above modification, the amount awarded by the tribunal under the other heads are hereby confirmed. Consequently, the award passed by the tribunal is enhanced to Rs.1,22,000/- alongwith interest @ 7.5% per annum from the date of petition till the date of deposit, excluding the period of delay in filing the appeal.
9. In the result, this Civil Miscellaneous Petition is allowed. No costs.
10. In view of the above, the second respondent insurance company is directed to deposit the entire compensation amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, excluding the period of delay of 1001 days in filing the appeal, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the appellant/claimant is permitted to withdraw the entire amount along with interest, after deducting the amount that has already been withdrawn by him, if any.
30.07.2014 Index:Yes/No Internet:yes/No rgr To
1.The Subordinate Judge, Motor Accident Claims Tribunal, Vellore.
2.The Record Keeper, V.R. Records, High Court of Madras.
R.SUBBIAH, J.
rgr C.M.A.No.3727 of 2013 30.07.2014