Madras High Court
United India Insurance Company ... vs D.Narayanan (Minor) on 27 April, 2021
C.M.A.No.2234 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.2234 of 2012
and M.P.No.1 of 2012
United India Insurance Company Ltd.,
No.52, General Muthiah Street,
Sowcarpet, Chennai - 79. ... Appellant
-vs-
1.D.Narayanan (Minor)
declared as major as per order in
M.P.No.1527 of 2011 dt.22.08.2011
2.G.Selvaraj ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the award and decree dated 10.12.2011 made in
O.P.No.1856 of 2008 on the file of the Motor Accidents Claims Tribunal
(In the IV Court of Small Causes), Chennai.
For Appellant : Mr.D.Bhaskaran
For Respondents : M/s.Ramya Rao for R1
R2 Notice Served
*********
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2234 of 2012
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award and
decree dated 10.12.2011 made in O.P.No.1856 of 2008 on the file of the
Motor Accidents Claims Tribunal (In the IV Court of Small Causes),
Chennai.
2. For the sake of convenience, the parties are referred to hereunder
according to their litigative status before the Tribunal
3. The appellant filed this appeal questioning insofar as the liability
as well as the quantum are concerned. The learned counsel for the appellant
would submit that in the absence of the valid license the question of
fastening the entire liability on the second respondent does not arise, since
the driver of the vehicle had no driving license on the date of accident.
Therefore, the Tribunal failed to order pay and recover. He relied the
Judgment in Shamanna -vs- Oriental Insurance Company Limited., it is
held that if the driver of the offending vehicle does not possess a valid
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C.M.A.No.2234 of 2012
driving license, the principle of "pay and recover" can be ordered to direct
the insurance company to the pay the victim, and then recover the amount
from the owner of the offending vehicle.
4. He further submitted that insofar as the quantum is concerned, the
Tribunal awarded a sum of Rs.34,900/- under the head of Medical Expenses
and awarded a sum of Rs.1,00,000/- under the head of Future Medical
Expenses. It was marked as Ex.P4 which is nothing but Future Surgery
Estimation. Therefore, it is very high and liable to be reduced.
5. The learned counsel for the respondent submitted that the law is
well settled, now in respect of theory of pay and recover. Though the driver
of the vehicle had no driving license on the date of the accident, there is no
illegality and no violations of the policy and as such the pay and recover
theory does not arise.
6. Insofar as the quantum is concerned, the Tribunal failed to award
for Loss of Income and as such the total award is fixed at Rs.2,79,550/-
(Rupees Two Lakhs Seventy Nine Thousand Five Hundred and Fifty only)
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C.M.A.No.2234 of 2012
is quite reasonable and liable to be confirmed and prayed for dismissal of
appeal.
7. Heard Mr.D.Bhaskaran, the learned counsel appearing for the
appellant and M/s.Ramya Rao, the learned counsel appearing for the first
respondent.
8. The Tribunal fastened the entire liability on the respondents and
made them liable to pay compensation. The only contention raised by the
learned counsel for the appellant is that the driver of the vehicle had no
license on the date of accident. It is relevant to relied upon the Judgment
reported in (2004)13 STC 224 Oriental Insurance Company Limited -vs-
Nanjappan and others., "It has to be noted that the insured did not appear
before the High Court and also has not appeared in this Court in spite of
service of notice. The view of the High Court cannot be maintained in view
of what has been stated in Asha Rani's case (supra) and Devireddy's case
(supra). To that extent the judgment of the High Court is unsustainable. At
the same time, the observations of this Court in Baljit Kaur's case (supra)
also need to be noted. In para 21 of the judgment, it was observed as
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C.M.A.No.2234 of 2012
follows: "The upshot of the aforementioned discussions is that instead and
in place of the insurer the owner of the vehicle shall be liable to satisfy the
decree. The question, however, would be as to whether keeping in view the
fact that the law was not clear so long such a direction would be fair and
equitable. We do not think so. We, therefore, clarify the legal position
which shall have prospective effect. The Tribunal as also the High Court
had proceeded in terms of the decision of this Court in Satpal Singh
(supra). The said decision has been overruled only in Asha Rani (supra).
We, therefore, are of the opinion that the interest of justice will be sub-
served if the appellant herein is directed to satisfy the awarded amount in
favour of the claimant if not already satisfied and recover the same from
the owner of the vehicle. For the purpose of such recovery, it would not be
necessary for insurer to file a separate suit but it may initiate a proceeding
before the executing court as if the dispute between the insurer and the
owner was the subject matter of determination before the tribunal and the
issue is decided against the owner and in favour of the insurer. We have
issued the aforementioned directions having regard to the scope and
purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it
is not only entitled to determine the amount of claim as put forth by the
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C.M.A.No.2234 of 2012
claimant for recovery thereof from the insurer, owner or driver of the
vehicle jointly or severally but also the dispute between the insurer on the
one hand and the owner or driver of the vehicle involved in the accident
inasmuch as can be resolved by the tribunal in such a proceeding". In vier
of the above Judgment, the Tribunal ought to have fastened the entire
liability on the first respondent and ordered pay and recovery by the second
respondent.
9. Insofar as the quantum is concerned. Admittedly, the Tribunal
failed to award any compensation under the head of Loss of Income. The
claimant sustained Grade III B Compound Fracture with dislocation of left
ankle, crush injury at left foot and ankle exposing tendon, tooth broken and
contusion in eyelid. In this regard, he was also suggested to undergo
Orthodesis of tarsal bone with LD Flap cover (Micro Vascular) plastic
surgery and the approximate estimate would be Rs.1,10,000/-, though it is
estimation for Future Surgery.
10. The Tribunal failed to award any compensation under the head of
Loss of Income. Due to the injury sustained by the claimant he could not
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C.M.A.No.2234 of 2012
able to continue his avocation. At the time of accident he was earning a
sum of Rs.3000/- per month. The Tribunal failed to award any
compensation under the head of Loss of Amenities also. Therefore, overall
the Tribunal rightly awarded a sum of Rs.2,79,550/- as compensation and it
is quite reasonable one and need not require any deduction.
11. In the result, this Civil Miscellaneous Appeal is partly allowed.
The appellant is directed to pay the compensation to the claimants and then
recover the same from the owner of the offending vehicle i.e., the second
respondent herein. No order as to costs. Consequently, the connected
miscellaneous petition is closed.
27.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
rna
To
1.The IV Court of Small Causes,
Motor Accidents Claims Tribunal,
Chennai.
2.The Section Officer,
V.R.Section,
Madras High Court,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2234 of 2012
Chennai.
G.K.ILANTHIRAIYAN, J.
rna
C.M.A.No.2234 of 2012
and M.P.No.1 of 2012
27.04.2021
https://www.mhc.tn.gov.in/judis/
