Madras High Court
The Oriental Insurance Co. Ltd vs Prakash .. 1St on 2 September, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 02.09.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.Nos.2613 & 2614 of 2013 and M.P.Nos.1 & 1 of 2013 and M.P.Nos.1 & 1 of 2014 The Oriental Insurance Co. Ltd., @-115, First Floor, S.B.Complex, 3rd Avenue, VIP Show Room upstars, Near Anna Nagar Rountana, Chennai, Tamil Nadu-600 040. ....Appellant in both CMAs Vs. 1.Prakash .. 1st Respondent in CMA.2613/13 2.Manikandan .. 1st Respondent in CMA.2614/13 3.C.Annadurai .. 2nd respondent in both CMAs. Civil Miscellaneous Appeals have been filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 05.08.2011 made in M.A.C.T.O.P.Nos.698 & 713 of 2010 on the file of the Motor Accidents Claims Tribunal (Additional District Judge FTC), Dharmapuri. For Appellant : Mr.M.Krishnamoorthy (in both appeals) For Respondents : Mr.S.Sathiaseelan (For R1) (in both appeals) No appearance for R2 JUDGMENT
The above appeals have been filed challenging the findings rendered by the Motor Accidents Claims Tribunal (Additional District Judge-FTC), Dharmapuri, in and by common award dated 05.08.2011 in C.M.A.Nos.2613 & 2614 of 2013, in fixing the liability on the part of the Insurance Company to pay the compensation amount.
2.Since the present appeal has been filed by the Insurance Company only challenging the findings of the Tribunal in fixing the liability on their part to pay the compensation amount, I am not dealing with the other aspects of the award passed by the Tribunal.
3.The 1st respondents in both the appeals are the claimants before the Tribunal. It is the case of the claimants before the Tribunal that on 06.02.2010, while they were walking on the left extreme side of the mud portion of the Dharmapuri-Pochampalli road, a two-wheeler bearing Registration No.TN-24-F-5825 came in a rash and negligent manner and dashed against them and thus, caused the accident. In the said accident, the claimants sustained serious injuries. Hence, they made claim for compensation as against the owner of the vehicle and its insurer/appellant herein/Insurance Company.
4.The claim made by the claimants were resisted by the Insurance Company by taking a defence that at the time of accident, the rider of the two-wheeler did not possess a valid and effective driving licence. Therefore, the Insurance Company is not liable to pay the compensation.
5.In order to prove their defence, before the Tribunal, on the side of the Insurance Company, the Junior Assistant from the RTO was examined as R.W.1 and an official from the Insurance Company was examined as R.W.2. R.W.1 had stated in his evidence that the rider of the two-wheeler did not have a valid and effect licence on the date of accident ie., on 06.02.2010, and he had obtained licence only on 08.02.2010 ie., subsequent to the accident. The Insurance Company had issued notice to the owner of the two-wheeler calling upon him to produce the driving licence. But, inspite of receipt of notice, he has not come forward to produce the driving licence. Notice sent to the owner of the vehicle was marked as Ex.R.3 and acknowledgment card was marked as Ex.R.4.
6.But, the Tribunal after considering the entire evidence, has fixed the liability on the part of the Insurance Company to pay the compensation amount. Aggrieved over the same, the present appeals have been filed by the Insurance Company.
7.I have carefully heard the submissions made on either side and perused the materials available on record and I find that the Insurance Company has discharged their liability in proving their case, by examining an official from the RTO as well as by marking the legal notice sent to the owner of the vehicle calling upon him to produce the driving licence. But, the owner of the vehicle has not come forward to produce the driving licence.
8.But, even though the rider of the vehicle did not possess a valid driving licence at the time of accident, the Insurance Company is liable to pay the compensation amount to the victim. However, the Insurance Company is entitled to recover the compensation amount from the owner of the vehicle, after paying the same to the victim. In this regard, a reference could be placed in the recent judgment of the Hon'ble Supreme Court in the case of S.Iyyapan v. United India Insurance Co. Ltd., reported in 2013 (7) SCC 62, wherein it has been held as follows_ Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. In view of the dictum laid down in the above cited decision of the Hon'ble Supreme Court, the appellant/Insurance Company is liable to pay the compensation to the victim, however, the Insurance Company is at liberty to recover the same from the insured / owner of the vehicle.
9.In the result, the Civil Miscellaneous Appeals are dismissed. No costs.
10.It is represented by the learned counsel for the Insurance Company that the entire compensation amount has already been deposited. Hence, the claimants are permitted to withdraw the entire compensation amount, by making necessary applications before the Tribunal. The appellant Insurance Company is permitted to recover the compensation amount from the owner of the vehicle viz., the second respondent in both the appeals.
02.09.2014 Internet: Yes / No Index : Yes / No ssv Copy to
1.The Additional District Judge (FTC), (Motor Accidents Claims Tribunal), Dharmapuri.
R.SUBBIAH, J., ssv C.M.A.Nos.2613 & 2614 of 2013 02.09.2014