Madras High Court
National Insurance Co.Ltd vs Lakshmi on 20 October, 2010
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/10/2010 CORAM THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN CMA.(MD).No.993 of 2008 National Insurance Co.Ltd., Through its Branch Manager Tirunelveli ... Appellant/2nd Respondent Versus 1.Lakshmi 2.Shanmugavel 3.Kasi Pandiyan ... Respondents/Respondents Civil Miscellaneous Petition filed under Section 173 of Motor Vehicles Act 1988 against the fair and decreetal order dated 18.12.2007 and made in MCOP.No.156 of 2005 on the file of Motor Accident Claims Tribunal (Principal Subordinate Judge), Tenkasi. !For Petitioner ... Mr.S.Srinivasa Raghavan ^For Respondents ... Mr.R.Subramanian :JUDGMENT
The appeal has been preferred by the Insurance Company against the award of Rs.2,25,000/- passed in favour of the claimants.
2. The facts of the case are as follows: On 10.4.2005 the first respondent along with his minor son was walking on the road towards left hand side. The Amasaddar car belonging to the third respondent herein driven rash and negligently hit the first respondent's minor son namely Kandan, who was taken to Edaikal Primary Health Center and then to Thenkasi Government Hospital, where the minor Kandan was declared dead. Therefore the claim petition was filed to the tune of Rs.5,00,000/-
3. The third respondent herein, respondent/owner of the vehicle filed a counter denying allegation that the car was driven rash and negligently. However he pleaded that the vehicle was insured with the appellant Insurance Company. The appellant contended before the Trial Court that the victim suddenly crossed the road without noticing on coming Ambassador car and therefore there was a contributory negligence on the part of the deceased and that the Ambasaddar Car was a Tourist Taxi and that the third respondent who drove the vehicle did not have the batch number to drive the Tourist vehicle at the time of the accident.
4. On appreciation of pleadings and evidence on record, the Tribunal found that the accident occurred because of rash and negligent driving of the Ambassader car and as the third respondent did not have the batch to drive the Tourist car, the appellant was directed to pay the compensation and recover the amount from the third respondent. It awarded a sum of Rs.2,25,000/-, which has been challenged by way of this appeal.
5. Mr.S.Srinivasaraghavan, learned counsel for the appellant submitted that the third respondent did not have batch for driving the Tourist car and therefore it amounts to violation of policy condition and that when there is a violation of policy condition, there cannot be any direction to pay and recover the amount. He relied upon the judgement of Hon'ble Supreme Court in New India Insurance Company Limited vs. Rashanben Rahemansha Fakir and another reported in 2008 (2) TNMAC 201 (SC) and in Asirvatham and five others. Vs. G.Chandrasekaran and another reported in 2006 2 TNMAC 380 and another judgement in Oriental Insurance Company Limited vs. Sivammal and seven others reported in 2007 2 TNMAC 216 to contend that non-possession of valid and effective licence to drive the transport vehicle is a violation of policy condition and therefore the Insurance Company cannot be made liable to pay compensation. Learned counsel further submitted that pay and recover was only ordered under extraordinary circumstances by the Hon'ble Supreme Court under Article 142 and therefore it would not be the binding precedent and therefore there cannot be any direction in this regard in this case. More over he submitted that the issue as to whether pay and recover amount could be ordered under Article 142 has been referred to a larger bench of the Supreme Court in the case National Insurance Co. Ltd. Vs.Parvathreni and another.
6. On the other hand Mr.R.Subramanian, learned counsel for the respondent submitted that the Tribunal rightly awarded the amount finding that the accident was caused by the Ambassador Car and therefore it cannot be found fault with. He pointed out that the third respondent had licence and he did not have batch only.
7. As far as the negligence is concerned, that point not canvassed before this court and no appeal has been preferred against the finding of negligence before this Court and hence it attained finality. The only point which is canvassed before this Court is that the driver of the vehicle at the time of accident did not have valid and effective driving licence and therefore it amounts to basic violation and breach of terms and conditions of the insurance policy. The third respondent deposed before the Tribunal that he was having driving licence to drive the vehicle and he took the vehicle only for his personal purpose and the vehicle was not used for hire or gain at the time of accident. He also deposed that he was employing a driver when the vehicle was hired or used for Tourist purpose. However the appellant/ Insurance company examined two witnesses including an official from RTO Office and proved that the third respondent did not have effective licence at the time of accident to drive Tourist Taxi. Therefore the Tribunal rightly found that there was no effective licence and however directed the appellant Insurance Company to pay and recover the amount.
8. Even though there was no valid and effective licence still the Hon'ble Supreme Court held that the Insurance Company had to pay and recover the same in the following cases:
In National Insurance Com. Ltd. vs. Geetha Bhut reported in 2008 (1) TNMAC 316 (SC), New India Insurance Company Limited vs. Rashanben Rahemansha Fakir and another reported in 2008 (2) TNMAC 201 (SC); the Oriental Insurance Company Limited vs. Angad Kol and others reported in (2009) 11 SCC 356, National Insurance Com. Ltd vs. Annappa Irappa Nesaria and others reported in 2008 (1) TN MAC 200 (SC); National Insurance Co. Ltd. v. Vidhyadhar Mahariwala reported in 2008 (2) TN MAC 369 (SC); New India Insurance Com. Ltd. Kamala and others reported in 2001 ACJ 843 (SC); and Oriental Insurance Company Limited vs. Mohammed Hussain reported in 2008 (4) CTC 127.
9. The judgement of the Hon'ble Supreme Court in National Insurance Com. Ltd. versus Swaran Singh and others reported in (2004) 3 SCC 297 has been explained in paragraph 11 of the judgement of the Hon'ble Supreme Court in National Insurance Com. Ltd. vs. Geeta Bhut and others reported in (2008) 12 SCC 426 as follows:
1) Swaran Singh case has no application to cases other than the third party risks.
2) Where originally the licence was a fake one renewal cannot cure the inherent fatality.
3) In case of third-party risks, the insurer has to indemnify the amount and if so advised to recover the same from insured.
4) The concept of purposive interpretation has no application to cases relatable to section 149 of the Act.
10. In this case, the driver was found to be having licence and not an effective and valid licence by having a batch to drive the Tourist taxi; As third party suffered, the Tribunal rightly directed the Insurance Company to pay and recover and the same cannot be found fault with. A Division Bench of this court in United India Insurance Company and others S.Saravanan and another reported in 2009 (2) TNMAC 103 held in para 22 that :
"Considering the above decision and the facts as seen from the records, the owner has breached the policy condition. At the same time, as far as the third party risk is concerned, the consistent view has been, as can be seen from the above, that the insurer must pay the third party and then take a decision whether to proceed against the owner. This is in consonance with the spirit of the Act"
As the Hon'ble Supreme Court as well as Division Bench of this Court categorically held that whenever the issue to pay compensation to the third party arose, the Insurance Company should pay at the first instance and thereafter recover the same from the owner, even if the Insurance Company was not liable to pay the amount.
11. The Tribunal took Notional Income as per Second Schedule Rs.15,000/- per annum and applied 15 as multiplier and awarded a sum of Rs.15,000/- X 15 = 2,25,000/-. The Tribunal did not award any amount under other headings and also did not consider future prospectus and financial dependency. Future prospects was considered by the Hon'ble Apex Court in R.K.Malik and another vs. Kiran pal and others reported in 2009 (1) TNMAC 593.
12. This court dealt with a case involved in the death of a minor child aged about 11 months in S.Ramamurthi and another vs. Sri.Parasakthi Fire Works and another reported in 2010 1 TN MAC 363. In that case, the deceased was 11 months old. The Tribunal awarded Rs.60,000/- as compensation. On appeal this court enhanced the award relying upon a decision of the Hon'ble Supreme Court reported in R.K.Malik and another Vs. Kiran Pal and others reported in 2009 (1) TN MAC 593 (SC) to Rs.2,50,000/-. As no amounts were awarded towards funeral expenses and loss of love an affection, a sum of Rs.5,000/- towards funeral expenses and a sum of Rs.20,000/- towards loss of love and affection. In total a sum of Rs.2,50,000/- is awarded. Even though the Insurance Company filed the appeal, the award is enhanced from Rs.2,25,000/- to Rs.2,50,000/- invoking Order 41 Rule 33 of CPC. The power of the court to enhance the amount even in the absence of appeal/cross appeal by the claimant has been recognized by the Hon'ble Supreme Court in a number of cases including Nagappa vs. Gurudayal Singh reported in 2004 (2) TN MAC 398 (SC) and therefore the award of the Tribunal is enhanced from Rs.2,25,000/- to Rs.2,50,000/-. The interest awarded by the Tribunal at the rate of 7.5 % is confirmed. The sharing of the award amount by the first and second respondents, as given by the Tribunal is confirmed. As stated above applying the principles of pay and recover, the appellant is directed to pay and recover the award amount from the third respondent. Accordingly the appeal is disposed of. No costs. Consequently M.P.No.1 of 2008 and M.P.No.1 of 2009 are closed.
gsr/vk To The Motor Accident Claims Tribunal (Principal Subordinate Judge),Tenkasi.