Madras High Court
The Oriental Insurance Co. Ltd vs V.G.Shanmugam on 19 April, 2021
C.M.A.No.1508 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.M.A.No.1508 of 2019
and
C.M.P.No.4210 of 2009
(Through Video Conferencing)
The Oriental Insurance Co. Ltd.,
Extension Counter No.362,
First Floor, C.T.H.Road,
Avadi, Chennai 600 054. ... Appellant
vs.
1.V.G.Shanmugam
2.Eswaramoorthy ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Decree and Judgment passed by the
Motor Accidents Claims Tribunal, (Additional District Court)
Dharmapuri in M.C.O.P.No.744 of 2011 dated 05.08.2013.
For Appellant : Ms.Harini for
M/s.N.Vijayaraghavan
For Respondents : No Appearance
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C.M.A.No.1508 of 2019
JUDGMENT
Though notice has been served on the contesting 1st respondent,
there is no representation on behalf of him.
2. The appellant - Insurance Company is aggrieved by the
impugned Judgment and Decree dated 05.08.2013 passed by the Motor
Accidents Claims Tribunal (Additional District Judge), Dharmapuri in
M.C.O.P.No.744 of 2011.
3. By the impugned Judgment and Decree, the Tribunal has
awarded a sum of Rs.2,83,909/- as compensation together with interest at
7.5% from the date of filing of the claim petition till the date of deposit,
payable by the appellant - Insurance Company, to the 1st
respondent/claimant for the injury suffered by him.
4. The brief facts of the case are that the 1st respondent/claimant
met with an accident while he was standing near PKP Compound at
Elakkiampatty in a TVs Moped bearing Reg.No.AP.02.E.6949, when a
Bajaj motorcycle bearing registration No. TN.29.AH.2431 insured with
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C.M.A.No.1508 of 2019
the appellant - Insurance Company driven by its driver in a rash and
negligent manner, knocked the 1st respondent/claimant. As a result of
the accident, 1st respondent/claimant sustained grievous injuries.
5. After considering the evidence on record, the Tribunal has
awarded the aforesaid sum of Rs.2,83,909/- as compensation payable by
the appellant - Insurance Company.
6. Aggrieved by the same, this Civil Miscellaneous Appeal has
been filed by the appellant - Insurance Company.
7. I have considered the arguments advanced by the appellant
Insurance Company and I have also perused the evidence on record and
the impugned Judgment and Decree passed by the Tribunal.
8. The appellant – Insurance Company has questioned the
reasoning adopted by the Tribunal for fastening the liability on it on the
ground that the rider of the insured vehicle bearing Reg.No.TN.29.AH
2431 was not possessing a valid driving licence and therefore there was a
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Page No 3 of 6
C.M.A.No.1508 of 2019
breach of conditions of the policy. It is submitted that the 2nd respondent
has violated the policy conditions and therefore the appellant - Insurance
Company is not liable to pay any compensation to the 1 st respondent.
Hence, this appeal prayed for setting aside the award of the Tribunal.
9. It is noticed that the accident was due to the rash and negligent
riding of rider of the motorcycle i.e. second respondent. At the same
time, the second respondent was not holding valid licence at the time of
the accident. If there is a violation of policy conditions, the appellant -
Insurance Company can be made liable to pay the compensation and
recover the amount from the owner of the insured vehicle as per the
decision of the Hon'ble Supreme Court in National Insurance Company
Vs. Swaran Singh and Others, (2004) 3 SCC 297. The relevant
portion of the Judgment is as follows:
(vi) Even where the insurer is able to prove breach on the part
of the insured concerning the policy condition regarding
holding of a valid licence by the driver or his qualification
to drive during the relevant period, the insurer would not
be allowed to avoid its liability towards the insured unless
the said breach or breaches on the condition of driving
licence is/are so fundamental as are found to have
contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply “the rule of
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C.M.A.No.1508 of 2019
main purpose” and the concept of “fundamental breach” to
allow defences available to the insurer under Section 149(2) of
the Act.
10. Since the second respondent, owner of the insured motorcycle
did not possess a valid driving licence at the time of the accident, there
was indeed a violation of the policy conditions. Therefore, as per the
decision of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd.
Vs. Nanjappan and Others, (2004) 13 SCC 224, liberty can be given to
the appellant Insurance Company to pay the compensation awarded by
the Tribunal and recover the same from the owner of the motorcycle, i.e.
2nd respondent herein.
11. The appellant-Insurance Company is therefore directed to
deposit the amount of compensation awarded by the Tribunal together
with interest and cost as ordered by the Tribunal, less any amount already
deposited, within a period of eight weeks from the date of receipt of a
copy of this Judgment. Thereafter, the appellant may proceed to recover
the same from the 2nd respondent owner of the motorcycle.
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C.M.A.No.1508 of 2019
C.SARAVANAN,J.
kkd
12. On Such deposit, the 1st respondent/claimant is permitted to
withdraw the same together with interest, less any amount already
withdrawn, by filing suitable application before the Tribunal.
13. Accordingly, this Civil Miscellaneous Appeal stands partly
allowed. No cost. Consequently, connected Miscellaneous Petition is
closed.
19.04.2021
kkd
Internet : Yes / No
Index : Yes / No
To:-
The Motor Accident Claims Tribunal,
(Additional District Court) Dharmapuri.
C.M.A.No.1508 of 2019 and
C.M.P.No.4210 of 2019
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Page No 6 of 6
