Madras High Court
A.Jahir Hussain vs V.Ramkumar(Died) on 21 April, 2021
C.M.A(MD)NO.513 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)NO.513 of 2010
A.Jahir Hussain :Appellant/Petitioner
.vs.
1.V.Ramkumar(died),
2.The National Insurance Company Limited,
Branch-II, Jerome Building,
Ist Floor, Fort Station Road,
Trichy-2.
3.Kavitha
4.Yasika
5.Amareswar
6.Viapuri
7.Kaliammal
(R3 to R7 are brought on record as Lrs of the deceased R1
vide order of this Court made in M.P(MD)No.1 to 3 of 2012 in
C.M.A(MD)No.513 of 2010, dated 11.12.2020)
:Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act praying this Court to set aside the portion of
the award amount relating to the payment of compensation by the
first respondent alone and directing the second respondent also to
pay the compensation to the appellant in M.C.O.P.No.1119 of 2006,
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C.M.A(MD)NO.513 of 2010
on the file of the III Additional Subordinate Judge's Court,
Tiruchirappalli.
For Appellant :Mr.T.Selvakumaran
for M/s.P.Muthiah
For Respondent-2 :Mr.J.S.Murali
JUDGMENT
*************
This Civil Miscellaneous Appeal has been filed by the
claimant questioning the award passed by the Motor Accidents
Claims Tribunal/III Additional Subordinate Court, Trichy in
M.C.O.P.No.1119 of 2006.
2.The appellant is the claimant in the original petition and he
sought compensation of Rs.2 lakhs for the injuries sustained by
him in the accident which had taken place on 04.12.2005. It is
alleged that the appellant was a passenger in the bus bearing
Registration No.TN 45 P 9155 which is owned by the first
respondent and insured with the second respondent. The bus was
stopped in the bus-stop to enable the passengers to get in and get
down. While the claimant was getting down from the bus, the
driver moved it in a rash and negligent manner, resulting the
claimant fell down from the vehicle and sustained multiple injuries.
He was immediately admitted in the Government Hospital at Trichy
where he was treated as inpatient.
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C.M.A(MD)NO.513 of 2010
3.The second respondent had filed a counter disputing the
averments and allegations made in the claim petition. It is also
contended that the driver of the offending bus was not having valid
driving licence and hence no liability can be fastened on the
Insurance Company.
4.The Tribunal, upon appreciation of the oral and
documentary evidence, adduced by the parties, held that the
accident had occurred due to the negligence of the driver of the
bus and further having found that the bus was driven by a person
who did not have a valid driving licence, directed the owner to pay
the compensation of Rs.85,000/-
5.Mr.T.Selvakumaran, learned counsel representing
Mr.P.Muthiah, learned counsel on record, would submit that the
claimant is a third party and the accident had occurred due to the
negligence of the driver of the bus. Since it was proved before the
Tribunal that the vehicile was insured with the second respondent,
the insurer is liable to pay the award amount.
6.Per contra, Mr.J.S.Murali,learned counsel appearing for the
second respondent/Insurance Company submitted that the
evidence produced by the claimant himself established that the
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C.M.A(MD)NO.513 of 2010
driver of the bus did not have valid driving licence and in view of
the recent decision of the Honourable Apex Court in the case of
Belli Ram .vs. Rajinder Kumar and another reported in
2020(2)TNMAC 445(SC) and the order passed by this Court in
C.M.A.Nos.3506 and 3507 of 2014, dated 18.11.2020, no
interference is required in this matter.
7.In reply, learned counsel appearing for the appellant
submitted that the Honourable Apex Court dealt with the matter
arising under the Workmen Compensation Act and it cannot be
applied to the case on hand.
8.Heard the rival submissions made on either side and
perused the materials available on record.
9.It is relevant to point out that the finding of the Tribunal
that the occurrence had taken place due to the negligence of the
driver of the bus has reached its finality and only questioning the
liability, the present appeal has been filed.
10.In the instant case, admittedly the first respondent herein
is the owner of the offending vehicle. In the counter filed by the
second respondent, it has been categorically stated that the driver
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C.M.A(MD)NO.513 of 2010
of the bus was not holding a valid and effective driving licence.
Ex.P4-Judgment of the Criminal Court reveals that the driver of the
vehicle was prosecuted under Section 3 r/w Section 181 of the
Motor Vehicles Act for non possessing of the licence and it ended in
conviction.
11.It is true that the onus is on the Insurance Company to
prove that the driver of the vehicle was not holding valid driving
licence. But the documents produced by the claimant Ex.P4 clearly
shows that the driver of the vehicle did not have a valid driving
licence. It is appropriate to mention that the offending vehicle
comes under the catagory of public transport vehicle and it is the
duty of the owner of the vehicle to verify as to whether the driver
was having a valid and effective driving licence before he was
entrusted with the vehicle to use it in a public place. Conveniently,
he remained exparte before the Tribunal.
12.The Honourable Apex Court in the case Belli Ram
referred to supra, has held that in a case of deliberate negligence
on the part of the owner of the vehicle for not having the valid
driving licence, the Insurance Company cannot be mulcted with
the liability to pay the compensation.
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C.M.A(MD)NO.513 of 2010
13.The relevant portion of the judgment cited supra, reads as
under:
8. The only question which has been debated
before us, is as set out at the inception of the
judgment. The appellant sought to rely upon
the 1 (2004) 3 SCC 297 recent judgment of this
Court,Nirmala Kothari v. United India
Insurance Company Limited.2 The question of
law examined in this judgment was as to what
is the extent of care/diligence expected of
the employer/insured while employing a driver.
The legal position regarding the liability of
the insurance company when the driver of the
offending vehicle possessed an invalid/fake
drivers licence was adverted to for answering
this question, by referring to earlier
judicial pronouncements and the same was
culled out in para 12 as under:
''12. While hiring a driver the
employer is expected to verify if the
driver has a driving licence. If the
driver produces a licence which on the
face of it looks genuine, the employer
is not expected to further investigate
into the authenticity of the licence
unless there is cause to believe
otherwise. If the employer finds the
driver to be competent to drive the
vehicle and has satisfied himself that
the driver has a driving licence there
would be no breach of Section 149(2)
(a)(ii) and the insurance company
would be liable under the policy. It
would be unreasonable to place such a
high onus on the insured to make
enquiries with RTOs all over the
country to ascertain the veracity of
the driving licence. However, if the
insurance company is able to prove
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C.M.A(MD)NO.513 of 2010
that the owner/insured was aware or
had notice that the licence was fake
or invalid and still permitted the
person to drive, the insurance company
would no longer continue to be liable.
14.As rightly pointed out by the learned counsel for the
appellant that the Honourable Supreme Court had an occasion to
deal with the case arising under Workmen Compensation Act. It is
relevant to mention here that a Single Judge of this Court in
C.M.A.No.3506 and 3507 of 2014, dated 18.11.2020 has held
that the principle laid down in the case of Belli Ram will be
applied to the case arose under the Motor Vehicles Act.
15.At the risk of repetition, it is mentioned here that the
offending vehicle is a public transport vehicle and it was the
obligation of the owner of the vehicle to verify whether the driver
was having valid driving licence before he was permitted to drive it
in a public place. Since it has been proved before the Tribunal that
the driver was not having valid driving licence at the relevant point
of time, I find no illegality in the order of the Tribunal, directing to
the owner of the vehicle to satisfy the award amount.
16.In that view, the Civil Miscellaneous Appeal fails and the
same stands dismissed. The first respondent/owner of the vehicle
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C.M.A(MD)NO.513 of 2010
is directed to deposit the entire award amount with accrued
interest and costs, less the amount already deposited, if any, within
a period of eight weeks from the date of receipt of a copy of this
order. On such deposit, the claimant is permitted to withdraw the
award amount, less the amount already withdrawn, if any, together
with proportionate interest and costs,by filing necessary
application before the Tribunal. No costs.
21.04.2021
Index:Yes/No
Internet:Yes/No
vsn
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
To
1.The III Additional Sub-Judge,
(The Motor Accidents Claims Tribunal) ,
Trichy.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)NO.513 of 2010
K.KALYANASUNDARAM, J.
vsn
JUDGMENT MADE IN
C.M.A(MD)NO.513 of 2010
21.04.2021
https://www.mhc.tn.gov.in/judis/
