Madras High Court
The Branch Manager vs )Malathi on 15 July, 2021
CMA(MD)No.135 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.07.2021
(Reserved on 01.03.2021)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.135 of 2020
and
CMP(MD)No.2460 of 2020
The Branch Manager,
United India Insurance Company Ltd.,
50-A, Pallivasal Street,
Perambalur & District. ... Appellant
vs.
1)Malathi
2)Urumaiah
3)Marimuthu
4)M.R.Ramalingam ... Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the decree and judgment dated 12.12.2017
made in MCOP.No.452 of 2012 on the file of Additional District Judge,
Pudukkottai.
For Appellant : Mr.A.Ilango
For R1 to R3 : Mr.N.Kamesh
For R4 : Mr.RMS.Sethuraman
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the insurance
company seeking pay and recovery alone.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.135 of 2020
2.The only contention made by the learned counsel for the
appellant is that the Tribunal has failed to consider that at the time of
accident, the driver of the Tractor-Trailer did not possess the
endorsement in his driving licence to drive heavy motor vehicle namely,
Tractor-Trailer which is violation of the policy conditions and therefore,
the Tribunal ought to have exonerated the appellant or directed the
appellant to pay the compensation to the claimants and then recover the
same from the 4th respondent/owner of the Tractor-Trailer. In support of
his contentions, he would rely on the following decisions:-
“i)National Insurance Company Ltd., vs. Swaran
Singh and others reported in 2004 ACJ 1 SC.
ii)New India Assurance Co.Ltd., vs. Govindan and
another reported in 2015 ACJ 1677.
iii)Shamanna and another vs. Divisional Manager,
Oriental Insurance Company Ltd., and others reported
in 2018 (2) TNMAC 151 (SC).
iv)Shivaraj vs. Rajendra and another reported in
2018 (2) TN MAC 273(SC).
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.135 of 2020
3. Per contra, the learned counsel appearing for the fourth
respondent would submit that after elaborate discussions the Tribunal
below held that the appellant and the fourth respondents are jointly and
severally liable to pay compensation to the claimants and therefore, the
finding of the Tribunal does not warrant interference and this appeal is
liable to be dismissed. Hence, he prays for appropriate orders.
4. Heard the learned counsel appearing for the respective parties
and perused materials available on record.
5. As per the directive of the Honourable Supreme Court, the
Union Ministry of Transport directed that the Cab Drivers had to get an
endorsement every three years to drive Trucks and other Heavy Transport
Vehicles. Admittedly, the vehicle involved in this case is a
Tractor-Trailer and the driving licence was not marked before the
Tribunal and on direction by this Court, the learned counsel for the fourth
respondent has produced a copy of the driving licence before this Court
and a perusal of the same would disclose that there is no endorsement in
his driving licence to drive heavy motor vehicle namely, Tractor-Trailer.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.135 of 2020
6. Accordingly, the finding of the Tribunal is hereby modified to
the effect that the appellant shall pay compensation to the claimants at
the first instance and thereafter recover the same from the fourth
respondent/owner of the vehicle as per the following mode of recovery
incorporated in the judgment of the Hon'ble Supreme Court in Oriental
Insurance Co.Ltd., Vs. Shri Nanjappan and others, reported in I (2004)
ACC 524 (SC):-
''(7) ....For the purpose of recovering the
compensation amount from the insured, the insurer shall not
be required to file a suit. It may initiate a proceeding before
the concerned Executing Court as if the dispute between the
insurer and the insured was the subject matter of
determination before the Tribunal and the issue is decided
against the owner and in favour of the insurer. A notice
shall be issued to the insured to furnish security for the
entire amount. The offending vehicle shall be attached as a
part of the security. If necessity arises, the Executing Court
shall take assistance of the concerned Regional Transport
Authority. The Executing Court shall pass appropriate
orders in accordance with law as to the manner in which the
insured, owner of the vehicle shall make payment to the
insurer. In case there is any default it shall be open to the
Executing Court to direct realisation by disposal of the
securities to be furnished or from any other property of the
insured. ....''
7.In all other aspects, the award dated 12.12.2017 made in
MCOP.No.452 of 2012 on the file of Additional District Judge,
Pudukkottai, is confirmed. The appellant at the first instance is directed
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.135 of 2020
to deposit the compensation of Rs.5,51,000/-(Rupees Five Lakhs and
Fifty One Thousand Only) with 7.5% interest from the date of petition
till the date of deposit, less the amount already deposited, if any, to the
credit of the claim petition within a period of four weeks from the date of
receipt of a copy of this judgment and thereafter recover the same from
the fourth respondent as per the judgment in Nanjappan's case(supra).
The respondents 1 to 3/claimants are permitted to withdraw their share as
proportioned by the Tribunal with interest without filing formal
permission petition before the Tribunal.
8. In the result, this Civil Miscellaneous Appeal is allowed as to
the extent stated above. No Costs. Consequently, connected
Miscellaneous Petition is closed.
Index :yes/No 15 .07.2021
Internet:yes/No
bala/pm
To
1.The Judge,
Additional District Judge,
Pudukkottai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.135 of 2020
J.NISHA BANU, J.
bala/pm
PRE-DELIVERY JUDGMENT MADE IN
CMA(MD)No.135 of 2020
DATED : .07.2021
15.07.2021
https://www.mhc.tn.gov.in/judis/
