Madras High Court
The Oriental Insurance Co. Ltd vs K.Dhanapal on 23 July, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 23.07.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.1862 of 2013 and M.P.No.1 of 2013 The Oriental Insurance Co. Ltd., Siddaveerappa Chetty Street, Dharmapuri. ..Appellant ..vs.. 1.K.Dhanapal 2.R.Vediappan 3.K.Sivalingam 4.The United India Insurance Co. Ltd., Manager, 33/24 C, Gandhi Nagar, Behind Central Theatre, Krishnagiri-635 001. ..Respondents Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 23.08.2011 made in M.A.C.T.O.P.No.863 of 2008 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Dharmapuri. For Appellant : Mr.M.Krishnamoorthy For Respondents : Mr.M.Selvam (For R1) JUDGMENT
The present appeal has been filed by the Insurance Company challenging the findings rendered by the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Dharmapuri, in and by award dated 23.08.2011 in M.A.C.T.O.P.No.863 of 2008, in fixing the liability on the appellant herein/Insurance Company to pay the compensation amount to the claimant/1st respondent herein and thereafter, to recover the same from the owner of the vehicle.
2.The 1st respondent herein is the claimant before the Tribunal. The case of the 1st respondent/claimant before the Tribunal is that on 05.08.2007 at 11.00 am, while he was travelling as a pillion rider in a two-wheeler bearing Registered No.TN-24-B-8806, driven by one Gunasekaran, owned by the 3rd respondent herein and insured with the 4th respondent herein / United India Insurance Co. Ltd., at Mavanthur Koot-road, another two-wheeler bearing Registration No.TN-24-C-0895, owned by the 2nd respondent herein and insured with the appellant herein / Oriental Insurance Co. Ltd., was driven by one Jaisankar, who is the son of 2nd respondent herein, in a rash and negligent manner on the wrong side of the road and dashed against the two-wheeler in which the claimant/1st respondent herein was travelling, as a result of which, the claimant sustained crush injury on his right foot and his 3rd & 4th toes in the right foot were amputated and he also sustained multiple injuries all over the body. Hence, he made a claim for a sum of Rs.5 lakhs for the injuries sustained by him in the accident.
3.In order to prove the disability suffered him, the claimant examined himself as P.W.1, besides examining one Dr.Krishnakumar as P.W.2 and marked 11 documents as Ex.P.1 to Ex.P.11. On the side of the Insurance Companies, four witnesses were examined as R.W.1 to R.W.4 and three documents were marked as Ex.R.1 to Ex.R.3, to establish their contention that since the drivers of the vehicle did not possess a valid and effective driving licence at the time of accident, they are not liable to pay the compensation amount.
4.Though the Tribunal had accepted the contention of the Insurance Companies that the drivers of the two-wheelers did not possess a valid and effective driving licence, by calculating the compensation amount under different heads, to a sum of Rs.1,34,000/-, directed the appellant herein /Oriental Insurance Co. Ltd., as well as the 4th respondent / United India Insurance Co.Ltd., to pay the compensation amount to the claimant and then, to recover the same from the owners of the respective vehicles.
5.It is the contention of the appellant herein/Oriental Insurance Co.Ltd, that since the Tribunal has come to the conclusion that the drivers of the two-wheelers did not possess a valid and effective driving licence, the Tribunal ought to have exonerated the Insurance Companies from paying the compensation amount. But, instead of doing so, the Tribunal has directed the Insurance Companies to pay the compensation amount to the claimant and then, to recover from the owners of the vehicles.
6.The learned counsel for the 1st respondent herein/claimant has made his submissions supporting the award passed by the Tribunal.
7.Heard the submissions made on either side and perused the materials available on record.
8.It is the contention of the learned counsel for the appellant/Insurance Company that since the driver of the vehicle did not possess a valid and effective driving licence at the time of the accident, there is a violation to the conditions of the insurance policy, and as such, the Tribunal ought to have exonerated the Insurance Company from paying the compensation amount. 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.
9.So far as the quantum of compensation is concerned, considering the nature of injuries sustained by the victim and also the fact that two toes in the right foot of the victim have been amputated, the total compensation amount of Rs.1,34,000/- awarded by the Tribunal cannot be said to be on the higher side. Under such circumstances, I do not find any merit in the appeal and the same is liable to be dismissed.
10.In the result, the Civil Miscellaneous Appeal is dismissed. The appellant/Insurance Company is directed to deposit their share of compensation amount to the credit of the above said MCOP, if not deposited so far, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the same, by making necessary application before the Tribunal.
Consequently, connected Miscellaneous Petition is closed.
No costs.
23.07.2014 Internet: Yes / No Index : Yes / No ssv Copy to_ The Chief Judicial Magistrate, Motor Accidents Claims Tribunal, Dharmapuri.
R.SUBBIAH, J., ssv C.M.A.No.1862 of 2013 and M.P.No.1 of 2013 23.07.2014