Madras High Court
The Divisional Manager vs Thanathipathi on 1 February, 2021
C.M.A.No.3155 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.3155 of 2019
and C.M.P.No.17896 of 2019
The Divisional Manager,
M/s.The New India Assurance Co. Ltd.,
Pondicherry. .. Appellant
Vs.
1.Thanathipathi
2.Raja .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 30.10.2018, made
in M.C.O.P. No.24 of 2014, on the file of the III Additional District and
Sessions Court, (Motor Accident Claims Tribunal), Cuddalore @
Virudhachalam.
For Appellant : Mr.J. Michael Visuvasam
For Respondents : Mr.P.Thamizhendhi (For R1)
No appearance (For R2)
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C.M.A.No.3155 of 2019
JUDGMENT
The matter is heard through "Video Conferencing".
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company against the judgment and decree dated 30.10.2018, made
in M.C.O.P. No.24 of 2014, on the file of the III Additional District and
Sessions Court, (Motor Accident Claims Tribunal), Cuddalore @
Virudhachalam.
2.The appellant is the 2nd respondent in M.C.O.P. No.24 of 2014, on the
file of the III Additional District and Sessions Court, (Motor Accident Claims
Tribunal), Cuddalore @ Virudhachalam. The 1st respondent/claimant filed the
said claim petition, claiming a sum of Rs.50,00,000/- as compensation for the
injuries sustained by him in the accident that took place on 21.06.2012.
3.According to the 1st respondent, on the date of accident, during his
course of employment, when he was driving the Sekar Bus bearing
Registration No.TN-31-M-7780 near by Kelacheruvai, Anna Nagar on
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C.M.A.No.3155 of 2019
Titagudi to Tholudur main road, on his left in a careful manner from East to
West direction, the driver of the Mahindra and Mahindra Mini Lorry bearing
Registration No.TN-46-K-6228 belonging to the 2nd respondent drove the
same in a rash and negligent manner from West to East and dashed against the
Bus and caused the accident. In the accident, the 1st respondent sustained
severe injuries. The accident occurred only due to rash and negligent driving
by the driver of the Mini Lorry. Hence, filed the said claim petition, claiming
compensation against the 2nd respondent as owner and appellant as insurer of
the offending vehicle.
4.The 2nd respondent, owner of the Mini Lorry, remained exparte before
the Tribunal.
5.The appellant-Insurance Company, filed counter statement and
denied all the averments made by the 1st respondent in the claim petition.
According to the appellant, the accident occurred only due to rash and
negligent driving of the Sekar Bus by the 1st respondent and not due to rash
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C.M.A.No.3155 of 2019
and negligent driving by the driver of the Mini Lorry belonging to the 2nd
respondent. The 1st respondent has to prove that the Mini Lorry was insured
with the appellant and the said vehicle had valid F.C., Permit, R.C. and the
driver had valid driving license to ply the vehicle, at the time of accident. In
any event, the 1st respondent also has to prove the age, avocation and income,
injuries sustained and disability suffered by the 1st respondent, to claim
compensation and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
examined Doctors as P.W.2 and P.W.3 and marked 12 documents as Exs.P1 to
P12. The appellant examined the Junior Assistant of R.T.O, Perambalur as
R.W.1, their Official as R.W.2 and marked 2 documents as Exs.R1 & R2. One
document was marked as Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by driver of the Mini Lorry belonging to the 2nd respondent and
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C.M.A.No.3155 of 2019
directed the appellant as insurer of the said vehicle to pay a sum of
Rs.9,63,420/- as compensation to the 1st respondent at the first instance and
recover the same from the 2nd respondent.
8.Challenging the award of the Tribunal dated 30.10.2018, made in
M.C.O.P. No.24 of 2014, the appellant - Insurance Company has come out
with the present appeal.
9.Though the appellant-Insurance Company raised various grounds
with regard to quantum of compensation awarded to the 1st respondent, at the
time of arguments, the learned counsel appearing for the appellant contended
that driver of the Mini Lorry belonging to the 2nd respondent did not possess
driving license at the time of accident and hence, the appellant is not liable to
pay compensation. The learned counsel further contended that the accident
occurred on 21.06.2012. The driver of the Mini Lorry has obtained driving
license only on 28.10.2013. The appellant examined the Junior Assistant from
Regional Transport Office, Perambalur as R.W.1 and proved that driver of the
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C.M.A.No.3155 of 2019
offending vehicle did not possess driving license on the date of accident. The
Tribunal without considering the same, erroneously ordered pay and recovery
and prayed for setting aside the award of the Tribunal.
10.Per contra, the learned counsel appearing for the 1st respondent
contended that the Tribunal considering the materials placed before it and the
judgment of the Hon'ble Apex Court, ordered pay and recovery. The 1st
respondent is 3rd party to the Insurance Policy. The Motor Vehicles Act is a
beneficial legislation. In view of the same, there is no reason to interfere with
the award of the Tribunal and relied on the judgment of the Hon'ble Apex
Court reported in AIR 2020 SCC 4453 [Beli Ram Vs. Rajender Kumar and
another], the relevant portion of which reads as follows:
“21. The learned Judge debated the question of the
consequences of the MV Act being a beneficial piece of
legislation. Thus, if two interpretations were possible, it
was opined that the one which is in favour of the claimants
should be given, but violence should not be done to the
clear and plain language of the statute. Thus, while
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C.M.A.No.3155 of 2019
protecting the rights of the claimants by asking the
insurance company to deposit the amount, the recovery of
the same from the insured would follow as the sympathy
can only be for the victim of the accident. The right which
has to be protected, is of the victim and not the owner of
the vehicle. It was, thus, observed in para 18 as under:
“18 When an employer employees a driver,
it is his duty to check that the driver is duly
licensed to drive the vehicle. Section- 5 of the
Motor Vehicles Act provides that no owner or
person incharge of a motor vehicle shall cause or
permit any person to drive the vehicle if he does
not fulfil the requirements of Sections 3 and 4 of
the Motor Vehicles Act. The owner must show that
he has verified the licence. He must also take
reasonable care to see that his employee gets his
licence renewed within time. In my opinion, it is
no defence for the owner to plead that he forgot
that the driving licence of his employee had to be
renewed. A person when he hands his motor
vehicle to a driver owes some responsibility to
society at large. Lives of innocent people are put
to risk in case the vehicle is handed over to a
person not duly licensed. Therefore, there must be
some evidence to show that the owner had either
checked the driving licence or had given
instructions to his driver to get his driving licence
renewed on expiry thereof. In the present case, no
such evidence has been led. In view of the above
discussion, I am clearly of the view that there was
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C.M.A.No.3155 of 2019
a breach of the terms of the policy and the
Insurance Company could not have been held
liable to satisfy the claim.
23.When we turn to the facts of the present
case there is almost an identical situation where
the appellant has permitted to let the first
respondent driver drive the truck with an expired
licence for almost three (3) years. It is clearly a
case of lack of reasonable care to see that the
employee gets his licence renewed, further, if the
original licence is verified, certainly the employer
would know when the licence expires. And here it
was a commercial vehicle being a truck. The
appellant has to, thus, bear responsibility and
consequent liability of permitting the driver to
drive with an expired licence over a period of
three (3) years. The only thing we note is that
fortunately there has been no accident with a third
party claimant but the person who has caused the
sufferance and sufferer are one and the same
person, i.e., the first respondent driver. We are,
however, dealing with the determination under the
Compensation Act and those provisions are for the
benefit of the workmen like the first respondent,
even though he may be at fault, by determining a
small amount payable to provide succor at the
relevant stage when the larger issues could be
debated in other proceedings.
The only exception is in the provisos to
Section 3 of the Compensation Act, which is not
the factual situation in the present case. The
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C.M.A.No.3155 of 2019
relevant provision reads as under:
“3. Employer' s liability for compensation.-
(1) If personal injury is caused to a
workman by accident arising out of and in the
course of his employment, his employer shall be
liable to pay compensation in accordance with the
provisions of this Chapter:
Provided that the employer shall not be so liable--
(a) in respect of any injury which does not
result in the total or partial disablement of the
workman for a period exceeding [four] days;
(b) in respect of any [injury, not resulting in
death, caused by] an accident which is directly
attributable to--
(i) the workman having been at
the time thereof under the influence of
drink or drugs, or
(ii) the wilful disobedience of
the workman to an order expressly
given, or to a rule expressly framed,
for the purpose of securing the safety
of workmen, or
(iii) the wilful removal or
disregard by the workman of any
safety guard or other device which he
knew to have been provided for the
purpose of securing the safety of
workmen.”
We are not aware whether any other
proceedings have been initiated or not, at least,
none that have been brought to our notice. The
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C.M.A.No.3155 of 2019
aforesaid findings of the initial lack of care by the
first respondent in not renewing the driving
licence would be present, but the lack of care of
the appellant as the employer would also arise.
We have penned down the aforesaid views as such
a situation is quite likely to arise in proceedings
under the MV Act where a third party is claiming
the amount. Proceedings here being under the
Compensation Act, the consequences are not
flowing to the first respondent as the initial
negligent person.”
11.Though notice has been served on the 2nd respondent and his name
is printed in the cause list, there is no representation for him either in person
or through counsel.
12.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the 1st respondent and perused the materials available on
record.
13.From the materials available on record, it is seen that apart from
various grounds raised in the counter statement, the appellant has also taken a
stand that driver of the offending vehicle did not possess driving license at
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C.M.A.No.3155 of 2019
the time of accident. In support of the said contention, the appellant examined
the Junior Assistant from the Regional Transport Office, Perambalur, as
R.W.1 and proved that driver of the offending vehicle obtained license only
on 28.10.2013 and did not possess the driving license on 21.06.2012 i.e., on
the date of accident. The issue whether the Insurance Company is liable to
pay compensation when the driver of the offending vehicle did not possess
driving license came up for consideration before the Hon'ble Apex Court in
the judgment reported in AIR 2020 SCC 4453 - Beli Ram case (cited supra),
relied on by the learned counsel appearing for the 1st respondent. The facts
before the Hon'ble Apex Court is, Beli Ram was owner of the Truck insured
with the 2nd respondent-Insurance Company in that case and the 1st
respondent, Rajinder Kumar was driver. Initially, he had a driving license
which was valid upto 06.09.1996. After expiry of license, the driver did not
renew the license for three years and accident occurred on 20.05.1999. The
driver was injured in the accident and he filed petition before the authority
under the Workmen Compensation Act against the owner and insurer of the
vehicle. The authority, under the Workmen Compensation Act, by order dated
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C.M.A.No.3155 of 2019
08.12.2014, awarded compensation, directing the owner and insurer to pay
the compensation. The Insurance Company and owner filed separate appeals,
questioning the liability fastened on them. The worker also filed appeal for
enhancement of the compensation. Before High Court, the Insurance
Company took a stand that the driving license of the driver expired on
06.09.1996 and the driver did not renew the same and on the date of accident
viz., on 20.05.1999, he did not have a license and hence, insurer is not liable
to pay compensation. The High Court accepting the case of Insurance
Company, allowed the appeal filed by the Insurance Company and dismissed
the appeal filed by the owner. The High Court also enhanced the
compensation in the appeal filed by the worker. Against the said judgment,
the owner filed appeal before the Hon'ble Apex Court. The Hon'ble Apex
Court considered the judgment reported in (2004) 3 SCC 297 [National
Insurance Co. Ltd. v. Swaran Singh and Ors.] and extracted paragraph Nos.
41 to 45 and 48 of Swaran Singh case. The Hon'ble Apex Court also
considered the judgment reported in (2015) 2 TAC 52 [Tata AIG General
Insurance Co. Ltd. v. Akansha & Ors.] and held that when the driving
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C.M.A.No.3155 of 2019
license of the driver expired, it amounts that there was no driving license on
the date of accident. The Hon'ble Apex Court relied on another judgment of
the Himachal Pradesh High Court, reported in 2012 ACJ 1891 [National
Insurance Co. Ltd. v. Hem Raj & Ors] and held that Insurance Company is
not liable to pay compensation. In paragraph No.21 of the Beli Ram case, the
Hon'ble Apex Court has extracted paragraph No.18 of the judgment reported
in 2012 ACJ 1891 – Hem Raj case (cited supra), which reads as follows:
“21. The learned Judge debated the question of the
consequences of the MV Act being a beneficial piece of
legislation. Thus, if two interpretations were possible, it
was opined that the one which is in favour of the claimants
should be given, but violence should not be done to the
clear and plain language of the statute. Thus, while
protecting the rights of the claimants by asking the
insurance company to deposit the amount, the recovery of
the same from the insured would follow as the sympathy
can only be for the victim of the accident. The right which
has to be protected, is of the victim and not the owner of
the vehicle. It was, thus, observed in para 18 as under:
“18 When an employer employees a driver,
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C.M.A.No.3155 of 2019
it is his duty to check that the driver is duly
licensed to drive the vehicle. Section- 5 of the
Motor Vehicles Act provides that no owner or
person incharge of a motor vehicle shall cause or
permit any person to drive the vehicle if he does
not fulfil the requirements of Sections 3 and 4 of
the Motor Vehicles Act. The owner must show that
he has verified the licence. He must also take
reasonable care to see that his employee gets his
licence renewed within time. In my opinion, it is
no defence for the owner to plead that he forgot
that the driving licence of his employee had to be
renewed. A person when he hands his motor
vehicle to a driver owes some responsibility to
society at large. Lives of innocent people are put
to risk in case the vehicle is handed over to a
person not duly licensed. Therefore, there must be
some evidence to show that the owner had either
checked the driving licence or had given
instructions to his driver to get his driving licence
renewed on expiry thereof. In the present case, no
such evidence has been led. In view of the above
discussion, I am clearly of the view that there was
a breach of the terms of the policy and the
Insurance Company could not have been held
liable to satisfy the claim.”
14.The Hon'ble Apex Court has held that Insurance Company is not
liable to pay compensation and dismissed the appeal, confirming the
judgment of the High Court. All the three judgments referred to by the
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C.M.A.No.3155 of 2019
Hon'ble Apex Court are relating to driver not renewing the license after
expiry of the validity period. Considering the judgments referred to above,
the Hon'ble Apex Court confirmed the judgment of the High Court and held
that when there was no driving license for driver to drive the vehicle, the
Insurance Company is not liable to pay compensation. The learned counsel
appearing for the 1st respondent referred to paragraph Nos.21 and 23 of the
judgment of the Hon'ble Apex Court - Beli Ram case (cited supra) and
contended that the Hon'ble Apex Court has held that protection must be given
to the claimant and Insurance Company must deposit the amount and recover
the same from the insured. In the same paragraph, the Hon'ble Apex Court
extracted paragraph No. 18 of the judgment reported in 2012 ACJ 1891 -
Hemraj case (cited supra), wherein, it has been held that when a person has
not renewed license after expiry, the Insurance Company is not liable to
satisfy the claim. In paragraph No.22, the Hon'ble Apex Court has held that
the three judgments referred to in the judgment of the Beli Ram's case set
forth legal positions and the Hon'ble Apex Court is in complete agreement
with views taken in all the three judgments of three different High Courts. A
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C.M.A.No.3155 of 2019
reading of the judgment of the Hon'ble Apex Court in Beli Ram case, makes
it clear that when the driver of the offending vehicle did not possess driving
license or failed to renew the driving license after expiry of validity period,
the Insurance Company is not liable to pay compensation to the claimants. In
view of the judgment of the Hon'ble Apex Court in Beli Ram case, the said
portion of award of the Tribunal ordering pay and recovery, directing the
appellant-Insurance Company to pay at the first instance and recover the
same from the 2nd respondent, owner of the vehicle, is erroneous and is liable
to be set aside and is hereby set aside. The 1st respondent is entitled to
compensation only from the 2nd respondent.
15.In the result, this Civil Miscellaneous Appeal is allowed and the
amount awarded by the Tribunal at Rs.9,63,420/- together with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit is
confirmed. The 2nd respondent, owner of the vehicle is directed to deposit the
award amount along with interest and costs, within a period of eight weeks
from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.
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C.M.A.No.3155 of 2019
No.24 of 2014. On such deposit, the 1st respondent is permitted to withdraw
the award amount, along with interest and costs, after adjusting the amount, if
any already withdrawn, by filing necessary applications before the Tribunal.
The appellant-Insurance Company is permitted to withdraw the award
amount, lying in the credit of M.C.O.P. No.24 of 2014, if the entire award
amount has already been deposited. It is made clear that if the 1st
respondent/claimant has already withdrawn the award amount, the
appellant/Insurance Company is not entitled to recover the same from the 1st
respondent/claimant. Consequently, connected Miscellaneous Petition is
closed. No costs.
01.02.2021
Index : Yes
gsa
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C.M.A.No.3155 of 2019
V.M.VELUMANI, J.,
gsa
To
1.The III Additional District and Sessions Judge,
(Motor Accident Claims Tribunal),
Cuddalore @ Virudhachalam.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A. No.3155 of 2019
01.02.2021
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