Madras High Court
M/S.Iffco Tokio General ... vs Palanisamy .. 1St on 17 February, 2021
C.M.A.Nos.339, 341 & 342 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.339, 341 & 342 of 2021
and C.M.P.Nos.2335, 2336 & 2338 of 202
M/s.Iffco Tokio General Insurance Co. Ltd.,
5/132 C, Sundaram Street,
Industrial Bank Upstairs,
Opp. New Bus Stand,
Avinasi Taluk, Coimbatore District. .. Appellant in
all the appeals
Vs.
1.Palanisamy .. 1st Respondent in
C.M.A.No.339 /2021
1.Palanisamy .. 1st Respondent in
C.M.A.No.341/2021
1.Sengodan @ Sengotaiyan .. 1st Respondent in
C.M.A.No.342/2021
2.Behera Sankar Rao Patnaick .. 2nd Respondent in
all the appeals
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C.M.A.Nos.339, 341 & 342 of 2021
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the common award dated
21.01.2020, made in M.C.O.P. Nos.1155 of 2017, 135 & 159 of 2018, on the
file of the Special Sub Court No.2, (Motor Accident Claims Tribunal), Salem.
(In all the appeals)
For Appellant : Mr.M.B.Raghavan
for M/s.M.B.Gopalan Associates
COMMON JUDGMENT
These appeals have been filed to set aside the common award dated
21.01.2020, made in M.C.O.P. Nos.1155 of 2017, 135 & 159 of 2018, on the
file of the Special Sub Court No.2, (Motor Accident Claims Tribunal), Salem.
2.All the appeals arise out of the same accident and common award.
Hence, they are disposed of by this common judgment.
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C.M.A.Nos.339, 341 & 342 of 2021
3.The appellant in all the appeals is the 2nd respondent-Insurance
Company in M.C.O.P. Nos.1155 of 2017, 135 & 159 of 2018, on the file of
the Special Sub Court No.2, (Motor Accident Claims Tribunal), Salem. The
1st respondent in all the appeals filed the above said claim petitions, claiming a
sum of Rs.7,00,000/-, Rs.10,00,000/- and Rs.15,00,000/- respectively as
compensation for the injuries sustained by them in the accident that took
place on 11.05.2017.
4.According to the 1st respondent in all the appeals, on the date of
accident, the 1st respondent in C.M.A.Nos.339 and 341 of 2021 were walking
on the left side of Harur Main road, Achankutapatti Mookanoor Sub Road,
from Salem side and 1st respondent in C.M.A.No.342 of 2021 rode the
Motorcycle bearing Registration No.TN-27-L-2019 on the extreme left side of
the same road in a careful manner. At that time, the driver of a Car bearing
Registration No.TN-02-R-6665 belonging to the 2nd respondent drove the
same in a rash and negligent manner from opposite direction and hit against
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C.M.A.Nos.339, 341 & 342 of 2021
the pedestrians/1st respondent in C.M.A.Nos.339 and 341 of 2021 and also hit
on the Motorcycle rode by the 1st respondent in C.M.A.No.342 of 2021 and
dashed against the tamarind tree and caused the accident. The accident
occurred only due to rash and negligent driving by driver of the Car belonging
to the 2nd respondent and hence, the 1st respondent in all appeals filed the
above said claim petitions, claiming compensation against the 2 nd respondent
as owner and appellant as insurer of the offending vehicle.
5.The 2nd respondent in all the appeals remained exparte before the
Tribunal.
6.The appellant, insurer of the Car, filed separate counter statements
and denied all the averments made by the 1st respondent in their respective
claim petitions. According to the appellant-Insurance Company, the driver of
the Car belonging to the 2nd respondent did not possess valid driving license to
ply the vehicle and he possessed only the LLR (Learner License Registration)
on the date of accident. Hence, for violation of policy conditions, the appellant
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C.M.A.Nos.339, 341 & 342 of 2021
is not liable to indemnify the 2 nd respondent. The 1st respondent in
C.M.A.No.342 of 2021 also rode the Motorcycle without wearing helmet and
he did not possess driving license at the time of accident. Hence, the accident
took place only due to the negligence of the 1st respondent in C.M.A.No.342
of 2021. In any event, the 1st respondent in all the appeals have to prove that
the 2nd respondent is owner and appellant is insurer of the offending vehicle.
The 1st respondent in all the appeals also have to prove the age, avocation and
income, injuries sustained and treatment taken by them to claim compensation
and prayed for dismissal of all the claim petitions.
7.Before the Tribunal, the 1st respondent in all the appeals examined
themselves as P.W.1 to P.W.3 respectively and marked 25 documents as
Exs.P1 to P25. The appellant-Insurance Company examined 5 witnesses as
R.W.1 to R.W.5 and marked 17 documents as Exs.R1 to R17. The disability
certificate of the 1st respondent in all the appeals, issued by the Medical Board
were marked as Exs.C1 to C3. The witnesses marked four documents as
Exs.X1 to X4.
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C.M.A.Nos.339, 341 & 342 of 2021
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the Car belonging to the 2nd respondent and directed the appellant as
insurer of the said vehicle to pay a sum of Rs.4,29,286/-, Rs.2,34,000/- and
Rs.2,71,804/- as compensation to the 1st respondent in all the appeals
respectively.
9.To set aside the common award dated 21.01.2020, made in M.C.O.P.
Nos.1155 of 2017, 135 & 159 of 2018, the appellant-Insurance Company has
come out with the present appeals.
10.Mr.M.B.Raghavan, learned counsel appearing for the appellant-
Insurance Company contended that at the time of accident, the driver of the
offending vehicle did not possess valid and effective driving license. The
Tribunal without considering the defence taken in the counter statement and
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C.M.A.Nos.339, 341 & 342 of 2021
evidence let in by the appellant, erroneously held that the appellant is liable to
pay compensation. The owner of the offending vehicle has violated the
provisions of the Motor Vehicles Act and policy conditions. In view of the
same, the appellant-Insurance Company is not liable to pay compensation to
the 1st respondent in all the appeals and relied on the judgment reported in
1996 ACJ 253 [New India Assurance Co. Ltd., Vs. Mandar Madhav Tambe
and others]. The total compensation awarded by the Tribunal is excessive and
prayed for setting aside the award of the Tribunal.
11.Heard the learned counsel appearing for the appellant-Insurance
Company and perused the materials available on record.
12.From the materials on record, it is seen that in paragraph no.5 of the
counter statements filed in all the claim petitions, the appellant has stated that
the driver of the Car belonging to the 2 nd respondent did not possess valid and
effective driving license at the time of accident. At the same time, in paragraph
no.7 of the said counter statements, the appellant has stated that the driver of
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C.M.A.Nos.339, 341 & 342 of 2021
the Car was not holding any valid driving license and possessed only LLR
(Learner License) at the time of accident and hence, the appellant is not liable
to pay compensation. The Tribunal considering the entire materials, the
defence taken by the appellant and admission of the appellant that driver of
the Car possessed LLR at the time of accident, relying on the judgment of the
Hon'ble Apex Court reported in 2004 ACJ 1 [National Insurance Co. Ltd. v.
Swaran Singh and others], held that LLR is a valid license and driver was
having license at the time of accident and directed the appellant to pay
compensation. In view of the judgment of the Hon'ble Apex Court reported in
2004 ACJ 1 - Swaran Singh case (cited supra), the judgment relied on by the
learned counsel appearing for the appellant does not advance the case of the
appellant.
13.As far as the quantum of compensation is concerned, the Tribunal
considering the nature of injuries, disability suffered by the appellant and
period of treatment taken, awarded compensation under different heads which
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C.M.A.Nos.339, 341 & 342 of 2021
are not excessive warranting interference by this Court.
14.For the above reason, all the Civil Miscellaneous Appeals are
dismissed and the amounts awarded by the Tribunal at Rs.4,29,286/-,
Rs.2,34,000/- and Rs.2,71,804/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit are confirmed. The
appellant-Insurance Company is directed to deposit the award amount, along
with interest and costs, within a period of six weeks from the date of receipt of
a copy of this judgment, to the credit of M.C.O.P. Nos.1155 of 2017, 135 &
159 of 2018. On such deposit, the 1st respondent in all the appeals are
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. Consequently, connected Miscellaneous
Petitions are closed. No costs.
17.02.2021
Index : Yes / No
gsa
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C.M.A.Nos.339, 341 & 342 of 2021
To
1.The Special Subordinate Judge No.2,
(Motor Accident Claims Tribunal),
Salem.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.Nos.339, 341 & 342 of 2021
V.M.VELUMANI, J.,
gsa
C.M.A. Nos.339, 341 & 342 of 2021
17.02.2021
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