Madras High Court

The Divisional Manager vs Manjula ... First on 19 February, 2021

                                                                                  CMA No.367 of 2013

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated 19.02.2021

                                                         CORAM:

                              THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

                                               CMA.No.367 of 2013 and
                                                 M.P.No.1 of 2013

                       The Divisional Manager
                       New India Assurance Company Limited,
                       Divisional Office, J.N. Street,
                       Pondicherry 605 002              ... Appellant / second respondent

                                                         Vs.

                       1. Manjula                              ... First respondent/ Claimant

                       2. C.Thangarasu                         ... Second respondent/first
                                                                      respondent


                       Prayer:        Civil Miscellaneous Appeal has been filed under Section

                       173 of the Motor Vehicles Act, 1988, against the decree and judgment

                       dated 02.06.2011 passed in MCOP No.59 of 2008 by the First

                       Additional Subordinate Judge, Motor Accident Claims Tribunal,

                       Cuddalore.

                                      For Appellant            : Mr.K.Vinoth



                       Page 1 of 9
https://www.mhc.tn.gov.in/judis/
                                                                                CMA No.367 of 2013

                                                  JUDGMENT

Aggrieved over the orders passed by the Tribunal, the New

India Assurance Company has filed the present appeal.

2. The claimant/ first respondent herein has filed a claim

petition before the Tribunal seeking compensation of Rs.10,00,000/- for

the death of her son in a road accident that took place on 17.09.2007.

3. The brief case of the claimant is as follows: On

17.09.2007 at about 7.00 p.m, the claimant and her deceased son

namely Kalaiselvan were walking from Sandhai at Avatti to their home

and while nearing Govindasamy's house at Avatti, a tractor bearing

registration No. TN-31-S-9242 and trailer bearing registration No.TN-

31-V-3570 came from opposite direction, hit the deceased and he

succumbed to the injuries. According to the claimant, the rash and

negligent driving of the driver of the Tractor and Trailer was the cause

of accident and since the first respondent insured his vehicle with the

second respondent, both of them are liable to pay compensation to the

claimant.

https://www.mhc.tn.gov.in/judis/ CMA No.367 of 2013

4. The Insurance company has resisted the claim petition

by filing the counter affidavit.

5. Before Tribunal, the claimant was examined as PW1

and Ex.P1 to Ex.P7 were marked. On the side of the second

respondent, one witness was examined as RW1 and Ex.R1 to Ex.R3

were marked.

6. After analysing the evidence on record, the Tribunal has

awarded a sum of Rs.4,10,000/- as compensation to the claimant under

various heads as extracted hereunder.

                                   Sl No                 Heads               Amount in Rs.
                                   1       Loss of dependency (1500x12x20)   3,60,000
                                   2       Love and affection                 40,000
                                   3       Transportation charges              5,000
                                   4       Funeral expenses                    5,000
                                   5        Total                            4,10,000

Aggrieved over the orders passed by the Tribunal, the insurance

company has filed the present appeal to set aside the same.

https://www.mhc.tn.gov.in/judis/ CMA No.367 of 2013

7. Heard the learned counsel for the appellant. The

appellant has not taken steps to serve notice to the respondents and

hence, this case is posted today for final hearing before this court.

8. The learned counsel appearing for the appellant has

raised the ground of negligence as well as the liability. The contention

of the counsel of the appellant is that at the time of accident, only the

Tractor was insured with them and the Trailer was not insured and since

there is no contract between the owner of the Trailer and the insurance

company, they are liable to pay compensation. It is further contended

by the counsel for the appellant that there is a violation of the terms and

conditions of the insurance policy and hence, the orders passed by the

Tribunal is liable to be set aside.

9. As far as the negligence aspect is concerned, the

Tribunal has elaborately discussed and found that the negligence is only

on the part of the driver of the offending insured vehicle and due to his

rash and negligent driving, the accident was occurred and the minor son

of the claimant was died on spot. The claimant, mother of the deceased,

https://www.mhc.tn.gov.in/judis/ CMA No.367 of 2013

who was a eyewitness to the occurrence while deposing evidence as

PW1, has clearly stated that the driver of the Tractor and Trailer was

rash and negligent in driving his vehicle. Further, there is no contra

evidence placed before the Tribunal to disbelieve the evidence of the

claimant. In the absence of any contra evidence, this court opines that

the findings of the Tribunal that the negligent is only on the part of the

driver of the vehicle, is liable to be confirmed.

10. As far as the liability is concerned, the contention of the

appellant is that there is a violation of policy condition and that the

validity of the license of the driver, who drove the tractor and trailer

was expired on 10.08.2007 i.e. before the date of accident and hence,

the insurance company is not liable to pay compensation. The above

license was marked as Ex.P4. The Tribunal has found that on the date

of accident, driver was having a valid license to drive the vehicle and

since the Tractor was insured with the appellant/insurance company,

they are liable to pay compensation.

https://www.mhc.tn.gov.in/judis/ CMA No.367 of 2013

11. At this juncture, it is relevant to rely upon a decision

rendered by the Honourable Supreme Court in Kempaiah and others

Vs. S.S.Murthy and another reported in 2017(1) TNMAC 737 (SC),

wherein, it is held thus:

11. In National Insurance Co. Ltd. Vs. Swaran Singh and others,

2004 (1) TN MAC 104(SC): 2004(3) SCC 297, this court has inter alia,

observed as follows:

" The breach of policy condition e.g. disqualification of the

Driver or invalid driving licence of the driver, as contained in

sub-Section (2) (a)(ii) of Section 149, has to be proved to have

been committed by the insured for avoiding liability by the

insurer. Mere absence, fake or invalid driving licence or

disqualification of the driver for driving at the relevant time, are

not in themselves defences available condition of the policy

regarding use of vehicles by a duly licensed driver or one who

was not disqualified to drive at the relevant time"

In the light of the above decision, the insurance company cannot escape

from its liability to pay valid compensation to the claimants, merely

because the driver did not possess valid licence. Further, the Tribunal

had not found any fault in respect of the violation of the terms and

conditions of the policy. If there is any violation of the policy condition,

https://www.mhc.tn.gov.in/judis/ CMA No.367 of 2013

at this stage, this court cannot go into that aspect in the present appeal.

It is to be noted that the appellant has not taken any steps to serve the

notice to the owner of the vehicle in the present appeal. Therefore, it is

for the insurance company to workout its remedy for recovering the

compensation from the owner of the vehicle, according to law.

12. In fine,