Madras High Court
The Branch Manager, Oriental Insurance ... vs Rajumani And Ors. [Alongwith C.M.A. ... on 22 November, 2007
Author: G. Rajasuria
Bench: G. Rajasuria
JUDGMENT G. Rajasuria, J.
1. These appeals are focussed as against the judgment and decree dated 27.11.1997, passed in M.C.O.P. No. 447 and 492 of 1993, on the file of the Motor Accidents Claims Tribunal (Principal District Court), Dindigul.
2. Heard both sides. The owner of the offending vehicle remained exparte before the Tribunal, eventhen this Court ordered notice for which steps have been taken, but it could not be served in person. Thereupon publication was effected for which there is no response from the owner of the vehicle, as such the matter is proceeded further.
3. The challenge in this Civil Miscellaneous Appeals is relating to the liability and quantum of compensation awarded by the Tribunal, vide judgment dated 27.11.1997, to a tune of Rs. 1,00,000/-(Rupees One Lakh only).
4. The gist and kernel of the grounds of appeal as stood exposited from the grounds of appeal could be set out thus:
The Tribunal was wrong in mulcting the insurance company with liability despite the fact that the offending vehicle was a goods vehicle in which passengers were carried. Despite clear evidence placed before the Tribunal that the driver of the vehicle had no driving licence at the relevant time of accident, the Tribunal held that the insurance company had not proved the fact that the driver of the offending vehicle had no driving licence at the relevant time.
5. During trial, on the side of the claimants P.W.1 to P.W.26 were examined and Exs.P.1 to 26 were marked and on the side of the respondents R.W.1 was examined and Exs.R.1 to R.5 were marked.
6. Points for consideration are
(i) Whether the deceased travelled as unauthorised passenger in the goods vehicle or as cleaner?
(ii) Whether the driver of the offending vehicle had valid driving licence at the relevant time of accident?
7. Point No. 1: The learned Counsel for the appellant/insurance company would argue that the Insurance Company is not at all liable to honour the award passed by the Tribunal in respect of the injury or death caused to the unauthorised passengers, who travelled in the offending goods vehicle. By way of torpedoing the arguments of the learned Counsel for the appellant and by way of clarifying, highlighting and spotlighting the true facts the learned Counsel for the claimants submitted that so far this case is concerned the person died by name Alagarsamy happened to be the cleaner of the vehicle and not the unauthorised passenger, for him insurance coverage existed as revealed from Ex.R.1 the Insurance Policy. Perused the Ex.R.1 the policy issued by the appellant insurance company, which would clearly demonstrate that the policy coverage was extended to driver and cleaner. In this case Ex.A.1, the F.I.R. clearly evidences that the deceased Alagarsamy was a cleaner and the Tribunal also gave such a finding. Hence, the appellant's plea that the deceased Alagarsamy was an unauthorised passenger is turned out to be wrong and I confirm the finding of the Tribunal that he was not an unauthorised passenger but he was covered by the insurance policy. Accordingly, this point is decided.
8. Point No. 2: By drawing the attention of this Court to the evidence of R.W.1 the Assistant in R.T.O. the learned Counsel for the appellant would develop his arguments to the effect that when there was a clear and categorical evidence of the official that at the relevant point of time that R.T.O. had not renewed the driving licence of the driver of the offending vehicle, the Tribunal was not justified in assuming and presuming otherwise and hold that the insurance Company ought to have proved that the driver had no driving licence. I am at a loss to understand as to what type of evidence over and above the official's evidence, the Insurance Company could produce. I am of the considered opinion that the Tribunal ought to have believed that the driver had no driving licence and accordingly should have directed the insurance company to pay the compensation at the first instance and get it reimbursed from the owner of the offending vehicle in commensurate with the principles of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. . An excerpt from it would run thus:
Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
Absence of driving licence with the driver of the offending vehicle is nothing to do with the coverage of the insurance policy in respect of the cleaner.
9. Accordingly, the award is modified to the effect that the insurance company shall pay the compensation to the claimants at the first instances and get it reimbursed from the owner of the vehicle for which no separate proceedings need be taken but they are at liberty to initiate E.P. proceedings in the Court and get the amount recovered. Consequently, connected M.P. (MD) Nos. 1 and 1 of 2007 are closed. No costs.