Madras High Court
United India Insurance Co. Ltd vs N.Pappathy on 25 July, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 25.07.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.1957 of 2010 and M.P.No.1 of 2010 United India Insurance Co. Ltd., Divisional Office No.II, Sunitha Building, D.B.Road, R.S.Puram, Coimbatore-2. ... Appellant ..vs.. 1.N.Pappathy 2.N.Anandakumar 3.N.Sangeethar 4.C.Sundararajan ... Respondents Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 29.03.2010 in M.C.O.P.No.241 of 2008 passed by the Motor Accidents Claims Tribunal (Subordinate Judge), Dharapuram. For Appellant : Mr.M.J.Vijayaraaghavan For Respondents : Mr.Mg.P.Thangavel (for R1 to R3) Mr.S.Sudalaikani (For R4) JUDGMENT
The present appeal has been filed by the Insurance Company only challenging the finding rendered by the Motor Accidents Tribunal (Sub-Judge), Dharapuram, in and by award dated 29.03.2010 in M.C.O.P.No.241 of 2008, in fixing the liability on their part to pay the compensation amount.
2.The respondents 1 to 3 herein are the claimants before the Tribunal. The 1st respondent is the wife and respondents 2 & 3 are the son and daughter of the deceased Narayanasamy respectively.
3.It is the case of the claimants that on 17.01.2007 at 12.00 hours, while the deceased Narayanasamy was walking on the Northern edge of the Coimbatore Town Maniyakaram Palayam main road, near Magaliamman Kovil, a two-wheeler bearing Registration No.TN-38-X-2688, owned by the 4th respondent herein and insured with the appellant herein/Insurance Company, came in a rash and negligent manner and dashed against the said Narayanasamy. In the said accident, the deceased Narayanasamy had sustained grievous injuries all over the body and he was taken to the hospital for treatment and in spite of the treatment given to him, he died on 19.01.2007. Hence, the claimants, who are the legal heirs of the deceased Narayanasamy, made a claim for compensation as against the owner of the two-wheeler and its insurer/appellant herein.
4.The claim made by the claimants was resisted by the Insurance Company by denying their liability to pay the compensation amount, stating that at the time of accident, the rider of the two-wheeler did not possess a valid and effective driving licence and as such, there is a violation to the conditions of the insurance policy and therefore, the Insurance Company is not liable to pay the compensation amount.
5.In order to prove their claim, before the Tribunal, on the side of the claimants, the 2nd respondent herein, son of the deceased, examined himself as P.W.1, besides examining an eye-witness to the occurrence viz., one Raman as P.W.2 and marked ten documents as Ex.P.1 to Ex.P.10. On the side of the Insurance Company, an officer of the Insurance Company viz., Uma Sakthivel was examined as R.W.1 and five documents were marked as Ex.R.1 to Ex.R.5.
6.The Tribunal, after analyzing the entire evidence adduced on either side, has passed an awarded for a total sum of Rs.4,29,000/- as compensation to the claimants and directed the Insurance Company to pay the compensation amount. Aggrieved over the same, the present appeal has been filed by the Insurance Company.
7. I have carefully heard the submissions made on either side and perused the materials available on record.
8.It is the submission of the learned counsel for the appellant/Insurance Company that at the time of accident, the rider of the two-wheeler did not possess a valid and effective driving licence to driver the two-wheeler. In fact, in order to prove the said defence, the Insurance Company had sent a notice to the owner as well as the driver of the two-wheeler to produce the driving licence. Though notice was sent, they had not produced the driving licence. Thus, the Insurance Company discharged their liability to prove the defence that at the time of accident, the rider of the two-wheeler did not have a valid and effective driving licence. Notices sent to the driver and owner of the vehicle were marked as Ex.R.1 & Ex.R.2 and the acknowledgement cards were marked as Ex.R.3 & Ex.R.4 and the copy of the Insurance Policy was marked as Ex.R.5, through the official of the Insurance Company who was examined as R.W.1. In spite of the evidence produced on the side of the Insurance Company, the Tribunal has fixed the liability to pay the compensation on the part of the Insurance Company. It is the contention of the learned counsel for the appellant/Insurance Company that since it has been established by the Insurance Company before the Tribunal that at the time of accident, the rider of the two-wheeler did not possess a valid and effective driving licence, the Tribunal ought to have exonerated the Insurance Company from paying compensation amount.
9.But, in view of the recent decision of the Hon'ble Supreme Court in the case of S.Iyyapan v. United India Insurance Co. Ltd., reported in 2013 (7) SCC 62, the said contention of the learned counsel for the appellant/Insurance Company cannot be countenanced. In the said case, the Supreme Court, while dealing with the similar contentions and after considering a catena of decisions, at Paragraph 17, 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.
10.However, on a perusal of the award passed by the Tribunal, I find that the liberty of recovering the compensation amount from the owner of the vehicle, after paying the amount to the claimants, was not given to the Insurance Company by the Tribunal. Hence, the award passed by the Tribunal is hereby modified to that effect that the Insurance Company is directed to pay the compensation amount to the claimants and then, to recover the same from the owner of the vehicle viz., 4th respondent herein. Except the above modification, the award passed by the Tribunal is hereby confirmed in all other aspects.
11.With the above terms, the Civil Miscellaneous Appeal is ordered. Consequently, connected Miscellaneous Petition is closed. No costs.
12.It is represented that the entire award amount has already been deposited before the Tribunal. Hence, the claimants are permitted to withdraw their respective share amount, as apportioned by the Tribunal, with proportionate accrued interest, by making necessary application before the Tribunal.
25.07.2014 Internet: Yes / No Index : Yes / No ssv Copy to The Subordinate Judge, (Motor Accidents Claims Tribunal), Dharapuram.
R.SUBBIAH, J., ssv C.M.A.No.1957 of 2010 and M.P.No.1 of 2010 25.07.2014