Mariammal vs Jagannathan
2021 Latest Caselaw 23496 Mad

                                                                             C.M.A.No.3433 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 01.12.2021

                                                        CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A.No.3433 of 2014


                  Mariammal                                                            .. Appellant

                                                          Vs.

                  1.Jagannathan

                  2.M/s.United India Insurance Company Ltd.,
                    DO-II, 1st floor,
                    104-A, Peramanur Main Road,
                    Salem.
                  3.Sekar
                  4.Sigamani
                  5.Murugesan                                                   .. Respondents
                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                  Vehicles Act, 1988, against the judgment and decree dated 14.08.2014 made

                  in M.C.O.P.No.1 of 2011 on the file of the Motor Accident Claims Tribunal,

                  Sub Court, Harur.

                                        For Appellant       : Mr.K.Thiruvengadam
                                        For Respondents         : Mr.S.Arunkumar for R2



                  1/8


https://www.mhc.tn.gov.in/judis
                                                                             C.M.A.No.3433 of 2014

                                                  JUDGMENT

The Civil Miscellaneous Appeal is filed by the appellant/claimant

challenging the portion of the award dated 14.08.2014 made in M.C.O.P.No.1

of 2011 on the file of the Motor Accident Claims Tribunal, Sub Court, Harur,

exonerating the 2nd respondent/Insurance Company from its liability.

2.The appellant is claimant in M.C.O.P.No.1 of 2011 on the file of the

Motor Accident Claims Tribunal, Sub Court, Harur. She filed the said claim

petition claiming a sum of Rs.9,00,000/- as compensation for the death of her

husband viz., Muniyan, who died in the accident that took place on

15.08.2009. The Tribunal after considering the oral and documentary

evidence, held that the accident has occurred only due to rash and negligent

riding by the 3rd respondent, rider of the motorcycle belonging to the 1st

respondent. Though the Tribunal arrived at a sum of Rs.7,48,000/- as

compensation, directed the respondents 1 and 3 to pay only a sum of

Rs.6,48,000/- as compensation to the appellant and respondents 4 and 5, who

are sons of the deceased and exonerated the 2nd respondent/Insurance

Company, insurer of the said motorcycle from its liability, on the ground that

driver of the motorcycle did not possess valid driving license at the time of

https://www.mhc.tn.gov.in/judis C.M.A.No.3433 of 2014

accident. The appellant has come out with the present appeal challenging the

portion of the award exonerating the 2nd respondent/Insurance Company from

its liability.

3.The learned counsel appearing for the appellant/claimant contended

that the Tribunal failed to follow the various judgments of the Hon'ble Apex

Court as well as this Court wherein time and again it has been held that the

benefit of the awards should not be avoided to the victims of the road accident

on technicalities and the Tribunal must be liberal in compensating the victims

and if there is any violation of policy condition, it is always open to the

Insurance Company to pay the compensation to the victims at the first

instance and recover the same from the owner of the vehicle. The Tribunal

failed to note that on the date of accident, the vehicle involved in the accident

was insured with the 2nd respondent. The Tribunal having found that the

accident has occurred due to rash and negligent riding by the 3rd respondent,

rider of the motorcycle, ought to have directed the 2nd respondent/Insurance

Company to pay the award amount at the first instance and recover the same

from the owner of the vehicle. The Tribunal ought to have considered the

https://www.mhc.tn.gov.in/judis C.M.A.No.3433 of 2014

plight of the appellant who is made to run from pillar to post to realize the

award amount in the claim petition against the 2nd respondent/Insurance

Company. The Tribunal ought to have ordered pay and recovery and prayed

for setting aside the portion of the award exonerating the 2 nd

respondent/Insurance Company from its liability.

4.Per contra, the learned counsel appearing for the 2nd

respondent/Insurance Company contended that the offending vehicle was

insured with the 2nd respondent at the time of accident. The 3rd

respondent/rider of the motorcycle did not possess valid driving license at the

time of accident. In view of the same, the Insurance Company cannot be

directed to pay compensation. The Tribunal has rightly exonerated the 2nd

respondent/Insurance Company from its liability and prayed for dismissal of

the appeal.

5.Heard the learned counsel appearing for the appellant as well as 2nd

respondent/Insurance Company and perused all the materials available on

record.

https://www.mhc.tn.gov.in/judis C.M.A.No.3433 of 2014

6.From the materials available on record, it is seen that the Tribunal has

exonerated the 2nd respondent/Insurance Company from its liability only on

the ground that the driver of the vehicle did not possess valid driving license at

the time of accident. The said reasoning of the Tribunal is erroneous. It is well

settled that if the rider of the two wheeler or driver of the four wheeler, the

offending vehicle did not posses driving licence, the Insurance Company must

satisfy the award at the first instance and recover the same from the owner of

the vehicle. In the judgment reported in 2004 ACJ 1 SC [National Insurance

Co. Ltd., Vs. Swaran Singh and others], the Hon'ble Apex Court has held

that if the driver of the vehicle did not possess valid driving licence at the time

of accident, the Insurance Company can be directed to pay the amount to the

claimant at the first instance and then recover the same from the owner of the

offending vehicle. In the judgment reported in 2012 1 TN MAC 226 [ICICI

Lombard General Insurance Co. Ltd., Vs. Annakkili], it has been held that

the Insurance Company cannot be exonerated from the liability to pay the

compensation to the 3rd party claim for the reason that the driver had no

licence or badge and the Insurance Company after paying the amount to

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claimant can recover the same from the owner of the vehicle. Similar finding

has been reiterated in another judgment reported in 2012 1 TN MAC 536

[National Insurance Co. Ltd., Vs. T.Mathiazhagan].

7.By applying the above said principle of law to the present case, the

portion of the award exonerating the 2nd respondent/Insurance Company from

its liability, on the ground that the 3rd respondent, rider of the motorcycle

belonging to the 1st respondent did not possess valid driving licence, is set

aside and the 2nd respondent/Insurance Company is directed to pay the

compensation amount of Rs.6,48,000/- to the appellant as well as the

respondents 4 and 5 at the first instance and recover the same from the 1 st

respondent, owner of the vehicle.

8. In the result, this Civil Miscellaneous Appeal is allowed and

the award of the Tribunal is hereby modified setting aside the portion

of award exonerating the 2nd respondent / Insurance Company from its

liability and the compensation awarded by the Tribunal is confirmed.

The 2nd respondent/Insurance Company is directed to deposit the entire

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amount awarded by the Tribunal along with interest and costs, within

a period of six weeks from the date of receipt of a copy of this

judgment at the first instance and recover the same from the 1st respondent,

owner of the motorcycle. On such deposit, the appellant and the respondents

4 & 5 are permitted to withdraw their respective share of the award amount,

along with proportionate interest and costs, as per the apportionment fixed by

the Tribunal, after adjusting the amount, if any already withdrawn, by filing

necessary applications before the Tribunal. No costs.

01.12.2021 Index : Yes / No Internet : Yes/ No

vkr To

1.The Subordinate Judge, Motor Accidents Claims Tribunal, Harur.

2.The Section Officer, V.R. Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis C.M.A.No.3433 of 2014

V.M.VELUMANI, J.,

vkr

C.M.A.No.3433 of 2014

01.12.2021

https://www.mhc.tn.gov.in/judis