Madras High Court
National Insurance Co. Ltd vs Tharabai on 3 August, 2009
Equivalent citations: AIR 2010 (NOC) 365 (MAD.), 2006 (5) AIR KAR R 33 2010 AIHC (NOC) 563 (MAD.), 2010 AIHC (NOC) 563 (MAD.), 2010 AIHC (NOC) 563 (MAD.) 2006 (5) AIR KAR R 33, 2006 (5) AIR KAR R 33
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.08.2009 CORAM THE HON'BLE MR.JUSTICE S.PALANIVELU C.M.A.No.2720 of 2004 National Insurance Co. Ltd., Chennai ... Appellant Vs 1.Tharabai 2.Ramabai 3.Sridharan 4.Harikumar 5.N.Moorthy ... Respondents PRAYER: Civil Miscellaneous Appeal against the award and decree dated 11.8.2003 made in O.P.No.1875 of 1999 on the file of the Motor Accidents Claims Tribunal, Additional District Sessions Judge, Fast TracK Court No.2, Chennai. For Appellant : Mr.S.Arunkumar For Respondents 1 to 4 : Mr.K.Natarajan For 5th Respondent : Mr.M.A.Ashokan - - - - - J U D G M E N T
In the claim petition, it is stated that while the deceased Tulasiraman was walking along Ennore Kathivakkam High Road, a Kinetic Honda Motor cycle with Registration No.TN 02 Z 7508 was rode by the fifth respondent, its owner, in a rash and negligent manner, dashed against him by means of which he sustained grievous injuries and was rushed to the hospital where he died. The accident took place due to the rash and negligent driving of the fifth respondent. The appellant is the insurer of the fifth respondent's vehicle. The deceased was 53 years at the time of accident and was earning a sum of Rs.6,000/- per month by taking cycle stand contract, vegetables vending and as a contract labourer. Hence, a sum of Rs.4,00,000/- is prayed for as compensation.
2.In the counter filed by the fifth respondent, it is stated that he rode the motor cycle near the site of accident slowly but the deceased suddenly crossed the rode and he invited the accident. Hence, the accident took place due to the carelessness of the deceased. There was no fault on the part of the fifth respondent. This respondent possessed valid licence at the time of accident. The vehicle was duly insured with the appellant Insurance company upto 08.05.1996. Hence, the appellant has to pay the compensation. So, the petition may be dismissed.
3.In the counter filed by the appellant/Insurance company, it is stated that the claimant has to establish that the vehicle was insured with the appellant and the fifth respondent was possessing valid licence to ride the motor vehicle. The particulars of licence furnished by the claimant in his claim form differ from the one maintained by the concerned Regional Transport Office. It is denied that the deceased died of dash by the fifth respondent two wheeler. The accident took place due to the negligent on the part of the deceased. The age, income and avocation of the deceased have to be proved by the claimants. The amount claimed is excessive and hence the petition has to be dismissed.
4.After considering the evidence on record, the tribunal fixed the liability upon the fifth respondent, found that the fifth respondent was having a valid licence to ride a motor vehicle and hence the insurance company has to pay the compensation. It has also quantified the compensation to Rs.1,96,000/-.
5.The learned counsel for the appellant Mr.S.Arunkumar would submit that the tribunal has lost sight of the importance in the evidence adduced by R.W.1 who is an official from the Regional Transport Office, Madras City (Central) and licence produced by the owner is a bogus one. Conversely, the learned counsel for the fifth respondent/owner would say that the evidence of R.W.1 itself would go to show that the licence produced by the owner is a genuine one and the insurance company has not discharged its burden in showing that Ex.R.2 was renewed licence which was in force and was a valid licence.
6.The learned counsel for the fifth respondent also submits that the owner submitted a claim form to the Insurance company aftermath the accident, marked as Ex.R.3 in which he has stated that the Driving Licence No.9522/91 dated 03.09.91 was issued by Assistant Licensing Authority, Madras City (Central) and the date of expiry as 01.09.96. R.W.1 is the Junior Assistant working in the above said R.T.O (central) who says that Licence No.9522/91 was issued in the name of one Thirumani S/o Sagadevan residing in No.37, Third Street, M.S.Nagar, Chetpet, Chennai 31 and that the licence as mentioned in the claim form was not issued to the owner of the vehicle namely the fifth respondent herein.
7(a).In the cross-examination by the owner, Ex.R.2 was marked which is a subsequent licence issued by R.T.O, (Central) in the year 2001, much later to the accident and R.W.1 has also stated that Ex.R.2 was issued by R.T.O (West) renewing the earlier licence. In fact, it was issued by R.T.O (East). Whatever may be, Ex.R.2 was not issued by R.T.O. (Central). Taking advantage of this portion of evidence, the learned counsel for the fifth respondent would say that the insurance company has failed to produce the licence particulars of the earlier licence prior to the renewal of Ex.R.2. This court does not accept the said contention for the reason that the fifth respondent herein has consciously mentioned in his claim form that the Licence No.9522/91 was issued by the R.T.O (Central) and he cannot turn round and a suggestion that the earlier licence was not produced.
7(b)The cumulative effect of the above said factors would go to show that the fifth respondent has not informed the insurance company as to the correct particulars of his driving licence. It is to be noted that in view of production of Ex.R.1 to R.5, the driving licence reportedly issued by R.T.O (central) under Ex.R.6 cannot be a true one. Ex.R.6 is for the period from 02.09.91 to 01.09.96. It is also in the evidence of R.W.1 that Licence No.9522/91 was issued in the name of one Thirumani and for the said evidence he has produced the letter of the R.T.O (Central) also. The above said factors would go a long way to show that the fifth respondent was not having a valid licence at the time of accident.
8.The next limb of contention of the learned counsel for the respondent is that the owner of the vehicle was not charge-sheeted under Section 3 of the Motor Vehicles Act and the tribunal has also discussed about this aspect and observed that in the absence of any charge-sheet under Section 3 of the M.V. Act, it could not be stated that the owner was not having valid licence. Merely because there was no charge against the owner under Section 3 of the M.V. Act, it could not be concluded that the owner was possessing a valid licence. When ample evidence are forthcoming by examination of R.W.1, the official from R.T.O, the failure on the part of the police to make a charge under Section 3 of the M.V. Act will not come to the rescue of the owner.
9.In view of the above said observations, this court is of the considered view that the fifth respondent has miserably failed to establish that he was possessing a valid licence at the time of accident and in this regard the insurance company has to be absolved from his liability. Hence, the observations, findings and conclusions of the tribunal fixing the liability to pay compensation by insurance company is set aside.
10.Before this court, there is no debate as regards the quantum of compensation and the compensation quantified by the tribunal is confirmed.
11.In fine, the Civil Miscellaneous Appeal is allowed setting aside the award passed by the tribunal with reference to the fixing of liability upon the insurance company and the claimants are entitled to recover the compensation as fixed by the tribunal from the owner of the vehicle, namely the fifth respondent herein. The appellant is permitted to withdraw the excess amount from the deposit. No costs.
03.08.2009
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S.PALANIVELU, J.
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C.M.A.No.2720 of 2004
03.08.2009