Madras High Court
The United India Insurance ... vs Anumuthu on 24 June, 2021
C.M.A.No.2916 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.2916 of 2014
and
M.P.No.1 of 2014
The United India Insurance Company Limited,
Vellore. .. Appellant
Vs.
1.Anumuthu
2.Nithyanantham .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
06.10.2012 made in M.C.O.P.No.346 of 2011 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Tirupattur.
For Appellant : Mr.M.Krishnamoorthy
For R1 : Mr.V.Parivallal
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed against the award dated
06.10.2012 made in M.C.O.P.No.346 of 2011 on the file of the Motor
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C.M.A.No.2916 of 2014
Accidents Claims Tribunal, Sub Court, Tirupattur.
2.The appellant is the 2nd respondent in M.C.O.P.No.346 of 2011 on
the file of the Motor Accidents Claims Tribunal, Sub Court, Tirupattur. The
1st respondent filed the said claim petition, claiming a sum of Rs.5,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 21.04.2011.
3.According to 1st respondent, on 21.04.2011 at about 02.45 P.M.,
while he was travelling as passenger in the Share Auto bearing Registration
No.TN 23 BW 3584 from Tholgate to Patchur Main Road, near Natrampalli
Tholgate, the driver of the Share Auto drove the same in a rash and negligent
manner and dashed against one cyclist, who was proceeding on the extreme
left side of the road and caused the accident. Due to the said impact, the 1st
respondent who was travelling in the Share Auto sustained grievous injuries
all over the body and fracture on his fibula. Immediately after the accident,
the 1st respondent was taken to Government Hospital, Vaniyambadi for
medical treatment and on the same day, he was referred to Government
Vellore Medical College Hospital for further medical treatment. Thereafter,
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C.M.A.No.2916 of 2014
the 1st respondent has taken treatment in the Private Hospital, till filing of the
claim petition. Therefore, he filed the said claim petition claiming a sum of
Rs.5,00,000/- as compensation for the injuries sustained by him against the
2nd respondent and appellant-Insurance Company, being the owner and
insurer of the Share Auto respectively.
4.The 2nd respondent-owner of the Share Auto remained exparte before
the Tribunal.
5.The appellant-Insurance Company, being the insurer of the Share
Auto filed counter statement and denied the manner of accident as alleged by
the 1st respondent. According to appellant, a petitioner in M.C.O.P.No.344 of
2011, a cyclist, who suddenly crossed the road and caused the accident.
Further, the driver of the Share Auto was not having valid driving license at
the time of accident. Hence, the appellant is not liable to pay any
compensation to the 1st respondent and only the 2nd respondent-owner of the
Share Auto is liable to pay the compensation to the 1st respondent, if any
awarded by the Tribunal. The 1st respondent has to prove his age, avocation,
income, nature of injuries, disability and period of treatment taken by
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C.M.A.No.2916 of 2014
producing valid documents. The quantum of compensation claimed by the 1st
respondent is excessive and prayed for dismissal of the claim petition as
against the appellant-Insurance Company.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
Dr.Elangovan was examined as P.W.2 and 6 documents were marked as
Exs.P1 to P6. The appellant examined two witnesses as R.W.1 & R.W.2 and
marked one document as Ex.R1.
7.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred due to rash and negligent driving by
the driver of the Share Auto belonging to 2nd respondent and directed the
appellant-Insurance Company to pay a sum of Rs.78,000/- as compensation to
the 1st respondent.
8.To set aside the said award dated 06.10.2012 made in
M.C.O.P.No.346 of 2011, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the
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C.M.A.No.2916 of 2014
driver of the Share Auto was not possessing valid driving license to drive the
Share Auto and the Tribunal erroneously directed the appellant-Insurance
Company to pay the compensation to the 1st respondent. The Tribunal ought
to have directed the 2nd respondent-owner of the Share Auto to pay the
compensation to the 1st respondent. The vehicle driven by the driver of the
insured is a transport vehicle and the same can be driven only by a person
who holds a license to drive a transport vehicle with badge and the same
cannot be driven by a person holding Learner's License. The Tribunal erred in
holding that Learner's License is a valid license to drive the commercial
transport vehicle without considering the fact that the transport vehicle
cannot be driven without endorsement to drive a transport vehicle and a
badge. The Tribunal failed to properly consider the evidence of R.W.1 &
R.W.2 and contents of Ex.R1 and prayed for setting aside the award passed
by the Tribunal.
10.Per contra, the learned counsel appearing for the 1st respondent
contended that the driver of the Share Auto was possessing Learner's License
at the time of accident and the Learner's License is also a valid one for
driving the transport vehicle. The driver of the Share Auto obtained driving
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C.M.A.No.2916 of 2014
license on 17.05.2011. The Tribunal considering the evidence of R.W.2 and
entire materials on record, rightly held that the appellant is liable to pay the
compensation to the 1st respondent and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the learned counsel appearing for the 1 st respondent and
perused the entire materials on record.
12.The present appeal is filed against the award of the Tribunal
directing the appellant to pay the compensation. The appellant has raised
various grounds with regard to liability. At the time of arguments, the learned
counsel appearing for the appellant mainly contended that the driver of the
Share Auto was not possessing valid driving license to drive the transport
vehicle at the time of accident and the Tribunal erroneously directed the
appellant-Insurance Company, being the insurer of the Share Auto to pay the
compensation to the 1st respondent.
13.A perusal of the records filed by the parties reveals that the accident
occurred on 21.04.2011 and on the date of accident, the 1st respondent was
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C.M.A.No.2916 of 2014
having only Learner's License which is valid from 09.03.2011 to 08.09.2011.
Further, the 1st respondent has obtained driving license only on 17.05.2011.
Therefore, it is clear from the records that at the time of accident, the driver
of the Share Auto belonging to 1st respondent was not possessing valid
driving license and he was having only Learner's License. The Tribunal
considering the same, directed the appellant-Insurance Company to pay the
compensation to the 1st respondent. The Hon'ble Apex Court in the judgment
reported in ACJ 2004 (Volume – I), [National Insurance Co. Ltd. Vs.
Swaransingh and others], held that learner's license is a valid license.
Further, as per the said judgment of the Hon'ble Apex Court, the Tribunal
ought to have directed the appellant-Insurance Company to pay the
compensation to the 1st respondent at the first instance and recover the same
from the 2nd respondent-owner of the Share Auto. In view of the judgment of
the Hon'ble Apex Court, the portion of the award directing the appellant-
Insurance Company to pay the compensation to the 1st respondent is modified
directing the appellant-Insurance Company to pay the compensation to the 1st
respondent at the first instance and recover the same from the 2nd respondent-
owner of the Share Auto.
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C.M.A.No.2916 of 2014
14.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.78,000/- is hereby confirmed
together with interest at the rate of 7.5% per annum from the date of petition
till the date of deposit. The appellant-Insurance Company is directed to
deposit the award amount along with interest and costs, less the amount
already deposited, if any, 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.No.346 of 2011 on the
file of the Motor Accidents Claims Tribunal, Sub Court, Tirupattur, at the
first instance and recover the same from the 2nd respondent. On such deposit,
the 1st respondent is permitted to withdraw the award amount, along with
interest and costs, less the amount if any, already withdrawn by making
necessary applications before the Tribunal. Consequently, the connected
Miscellaneous Petition is closed. No costs.
24.06.2021
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.2916 of 2014
S.KANNAMMAL, J.
krk
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Tirupattur.
2.The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No.2916 of 2014
24.06.2021
https://www.mhc.tn.gov.in/judis/
