Madras High Court
National Insurance Co. Ltd vs Jayanthi on 29 June, 2021
C.M.A. Nos.2804 and 2783 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 29.06.2021
CORAM
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A. Nos.2804 and 2783 of 2014
and MP. Nos.1, 1 of 2014
National Insurance Co. Ltd.,
Branch Office, 403,
B-10, Karthikeya Complex,
Mettur Main Road,
Bhavani, Erode District. .. Appellant in both the appeals
Versus
1. Jayanthi
2. K.Sathiyamurthy
3. S.Nallasivam .. Respondents in CMA.No.2804 of 2014
1. Minor Rakshith @ Ranjith
2. S.Nallasivam .. Respondents in CMA.No.2783 of 2014
PRAYERs: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgments and decrees dated 19.04.2012 made
in MCOP.Nos.715 & 716 of 2008 on the file of Motor Accidents Claims
Tribunal/Sub Court, Sankari.
In CMA.No.2804 of 2014
For appellant : Mr.Arun Kumar
For respondents
for RR1 & 2 : Not known
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for R3 : Mr.A.P.Srinivas
C.M.A. Nos.2804 and 2783 of 2014
In CMA.No.2783 of 2014
For appellant : Mr.Arun Kumar
For respondents
for R1 : Not known
for R2 : Mr.A.P.Srinivas
COMMON JUDGMENTS
These appeals are heard through video conferencing.
2. The present appeals have been filed by the Insurance Company,
questioning the findings rendered by the Motor Accidents Claims Tribunal/Sub
Court, Sankari in MCOP.Nos.715 & 716 of 2008 to pay and recover the
compensation amount.
3. For the sake of convenience, the parties are referred to as per the
ranking before the Motor Accident Claims Tribunal.
4. The respondents 1 and 2 in CMA No.2804 of 2014, who are the
claimants in MCOP No.715 of 2008, are the parents of the deceased minor
son, viz., Arjun, and the first respondent in CMA.No.2789 of 2014, who is the
claimant in MCOP.No.716 of 2008, is a minor son studying II standard at the
time of the accident. In both the claim petitions, the first
respondent/S.Nallasivam is the owner of the Eicher Van bearing Registration
No.TN 33 U 9919 involved in the accident and the second respondent is its
insurer.
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C.M.A. Nos.2804 and 2783 of 2014
5. It is the case of the claimants that, on 13.05.2008 at about 9.00 am,
the claimants and their sons were travelling in the Hyundai Accent Car bearing
Registration No.TN 33 AA 5049 from Thirupur to Pallipalayam. When they
were nearing Chinniyampalayam, an Eicher Van bearing Registration No.TN
33 U 9919 came from the opposite direction in a zigazag manner and on seeing
this, the second claimant in MCOP.No.715 of 2008, drove the vehicle to the
right side of the mud Road. In spite of that, the said Eicher Van hit the left side
of the claimant's Car and the Car fell on a drainage. One Arjun, who is the
second son of the claimants in MCOP.No.715 of 2008, was thrown out of the
Car and died on the spot and hence, the parents of the deceased made a claim
for a sum of Rs.5,00,000/- as compensation in MCOP.No.715 of 2008. Their
another son by name Rakshith @ Ranjith sustained grievous injury and took
treatment in KMCH Hospital, Erode and hence, he made a claim for a sum of
Rs.3,00,000/- as compensation in MCOP.No.716 of 2008.
6. The above claim petitions were resisted by the appellant/Insurance
Company by filing a counter statement denying the manner of accident as
projected by the claimants in the claim petitions. It is the specific defence of the
Insurance Company that the second claimant in MCOP.No.715 of 2008 had
drove the Car on the wrong side of the road without noticing the Eicher Van
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C.M.A. Nos.2804 and 2783 of 2014
coming in the opposite direction and dashed against it. Hence, the Insurance
Company is not liable to pay any compensation to the claimants. Further, the
driver of the Eicher Van has no valid and effective licence to drive the heavy
goods vehicle. Thus, he violated the policy conditions and hence, they are not
liable to pay compensation to the claimants indemnifying the owner of the
Eicher Van.
7. In order to prove the claim on the side of the claimants, the first
claimant in MCOP.No.715 examined herself as PW1 and marked Exs.P1 to
P10. On the side of the Insurance Company, two witnesses were examined as
Exs.RW1 & RW2 and Exs.R1 & R2 were marked.
8. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident had occurred due to the rash and negligent driving
of the driver of the Eicher Van. By coming to such conclusion, the Tribunal
awarded a sum of Rs.3,50,000/- to the claimants in MCOP.No.715 of 2008
and Rs.30,000/- to the claimant in MCOP.No.716 of 2008 and directed the
second respondent/Insurance Company to pay the above amounts at the first
instance, and thereafter, permitted the second respondent/Insurance Company
to recover the same from the first respondent/owner of the Eicher Van.
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C.M.A. Nos.2804 and 2783 of 2014
9. Though very many contentions have been raised in this appeal, it is
the specific contention of the the appellant/Insurance Company that the driver
of the first respondent's Eicher Van had no valid driving licence. The Tribunal
even though came to the conclusion that the driver of the first respondent's
Eicher Van had violated policy condition, erred in directing the
appellant/Insurance Company to pay the compensation at the first instance and
thereafter permitted to recover the same from the first respondent. Since there
is a violation of policy condition, the appellant is not liable to pay the
compensation.
10. Today, the learned counsel for the appellant/Insurance Company
farily submitted that though the driver of the vehicle did not hold a valid
driving licence, it cannot be a ground for rejecting the insurance claim. In
support of the above contentions, the learned counsel for the
appellant/Insurance Company relied upon the judgment of the Supreme Court
in the case of National Insurance Company vs. Swaran Singh, reported in
2004 3 SCC 297, wherein, it has been held that though the driver did not hold
a valid licence, it could not be a ground for the Insurance Company to
repudiate the claim. The relevant portion of the said judgment reads as follows.
"110. The summary of our finding to the various issues are raised
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C.M.A. Nos.2804 and 2783 of 2014
in these petitions is as follows:.....
(iii) ......Mere absence, fake or invalid driving
licence or disqualification of the driver for driving at
the relevant time, are not in themselves defences
available to the insurer against either the insured or
the third parties.
"
11. In view of the above judgment and submissions of the learned
counsel for the Insurance Company, this Court is of the view that the order
passed by the Tribunal is a well justified award and the same does not require
any interference by this Court. Accordingly, the Civil Miscellaneous appeals
are dismissed. Consequently, the amounts awarded by the Tribunal are
confirmed.
12. i) Thus, the second respondent/Insurance Company is directed to
deposit a sum of Rs.3,50,000/- before the Tribunal in MCOP.No.715 of 2008
and Rs.30,000/- before the Tribunal in MCOP.No.716 of 2008, with interest at
7.5% p.a. from the date of petitions till the date of deposit, less the amount
already deposited, within a period of six weeks from the date of receipt of this
judgment. On such deposit, the claimants in MCOP.No.715 of 2008 are
entitled to withdraw their respective shares, as apportioned by the Tribunal.
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C.M.A. Nos.2804 and 2783 of 2014
Insofar as the minor claimant in MCOP.No.716 of 2008 is concerned, his share
shall be deposited by the Tribunal in any Fixed Deposit Scheme in any one of
the Nationalised Bank and it shall be renewed periodically till he attains
majority and the interest accrued thereon shall be withdrawn by her mother,
once in three months. No costs. Consequently, connected miscellaneous
petitions are closed.
ii) The second respondent/Insurance Company, after making payment,
is permitted to recover the above compensation amount from the first
respondent/owner of the Eicher Van.
29.06.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The Sub Court, Sankari/
The Motor Accident Claims Tribunal
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. Nos.2804 and 2783 of 2014
S.KANNAMMAL, J.
pvs
C.M.A. Nos.2804 and 2783 of 2014
29.06.2021
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