Madras High Court
National Insurance Company ... vs Asiya Banu on 1 April, 2022
C.M.A(MD).No.987 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.987 of 2021
and
C.M.P(MD).No.9282 of 2021
National Insurance Company Limited,
Represented by its Divisional Manager,
No.33, Promenade Road,
Cantonment, Trichy District.
: Appellant/2nd Respondent
.vs.
1.Asiya Banu
2.Mohammed Yahoob
3.Shakeen Fathima
4.Sijoy : Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the judgment and decree dated
19.09.2019 made in M.C.O.P.No.521 of 2015, on the file of the Motor
Accident Claims Tribunal, Special District Judge to deal with MCOP
Cases, Tiruchirappalli and allow this appeal.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.987 of 2021
For Appellant : Mr.A.S.Mathialagan
For Respondents : Mr.C.Deepak
for R1 to R3
Mr.M.E.Rani Selvam for R4
JUDGMENT
*************
The Insurance Company is the appellant herein. The respondents 1
to 3 who are the legal heirs of the deceased boy, namely, Jameel Ahamed
have filed M.C.O.P.No.521 of 2015 for claiming compensation for the
accident occurred on 30.01.2015.
2. The brief case of the claimants is as follows:
(i) The deceased Jameel Ahamed was aged 14 years and was
studying IX standard on the date of the accident.
(ii) On 30.01.2015, at about 14.00 hours, the deceased Jameel
Ahamed travelled as a pillion rider in his friends' two wheeler - TVS
Super XL bearing its Registration No.TN-45-AK-5650 and the
Motorcycle was ridden by his friend - Mohammed Mustafa, slowly and
cautiously. At that time, a Eicher lorry bearing Registration No.KL-08-
BB 2557 belonged to the first respondent and insured with the second
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.987 of 2021
respondent therein, was driven by its driver in a very rash and negligent
manner with hectic speed and dashed against the motorcyclist, as a result
of which, the pillion rider deceased Jammel Ahamed and his friend fell
down in the road and the front wheel of the lorry ran over the deceased
Jammel Ahamed and he died on the spot. According to the respondents 1
to 3/claimants, the rash and negligent driving of the driver of the lorry
bearing Registration No.KL-08-BB-2557 was the cause of the accident.
Since the lorry was insured with the appellant, both the respondents
therein are jointly and severally liable to pay compensation of Rs.
15,00,000/- to them.
3. The owner of the said lorry remained absent before the Tribunal
and therefore, he was set ex-parte. The National Insurance Company
Limited contested the claim petition.
4. Before the Tribunal, the first respondent/ first claimant was
himself examined as PW1 and Mohammad Iqbal was examined as P.W.2
and exhibits P1 to P9 were marked. On behalf of the Insurance Company,
two witnesses were examined as R.W.1 and R.W.2 and exhibits R1 to R5
were marked and also two documents Exs.X1 and X2 were marked
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C.M.A(MD).No.987 of 2021
through Court. Based upon the oral evidence of PW2, who is the
eyewitness of the case and copy of the Insurance Policy in the name of
Sijoy, the copy of the Advocate Notice and the copy of the Driving
Licences, the Tribunal has come to the conclusion that the accident has
taken place due to the rash and negligent driving of the driver of the lorry
bearing Registration No.KL-08-BB-2557, belonging to the fourth
respondent herein and insured with the Appellant/Insurance Company.
Therefore, the Tribunal directed the first and second respondents, therein,
to jointly and severally pay a sum of Rs.5,00,000/- together with interest
at the rate of 7.5% per annum. Aggrieved against the orders passed by
the Tribunal, the Insurance Company Limited has filed the present appeal
under Section 173 of the Motor Vehicles Act, 1988.
5. Heard both sides.
6. The learned counsel for the appellant/National Insurance
Company has submitted that at the time of the accident, the driver of the
lorry does not possess valid driving licence to drive the lorry.
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C.M.A(MD).No.987 of 2021
7. Per contra, the learned counsel for the fourth respondent
submitted that the driver would have obtained the Heavy Motor Vehicle
licence from any other the RDO office.
8. On the date of the accident, i.e. on 30.01.2015, the driver of the
appellant lorry does not possess any valid licence to drive the HMV
vehicle. It remains to be stated that though Ex.R3/copy of the Advocate
Notice issued by the Insurance Company to the owner and the driver of
the lorry, they were not produced the driving licence and therefore, I find
that on the date of the accident, the driver of the lorry does not possess
valid driving licence to drive the lorry and hence, the Insurance
Company is not liable to pay the compensation to the claimants.
However, based upon the judicial pronouncement, the National Insurance
Company is directed to pay the compensation and recover from the
owner of the vehicle.
9. As far as the quantum of compensation is concerned, the
Tribunal has considered all the facts and circumstances and awarded a
just and reasonable compensation and the same need not be disturbed at
this juncture. Therefore, the quantum of compensation awarded by the
Tribunal is hereby confirmed.
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C.M.A(MD).No.987 of 2021
10. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed to the limited
extent indicated above. No costs. Consequently, the connected
Miscellaneous Petition is closed.
(ii) The quantum of compensation awarded by the Tribunal is
upheld.
(iii) The order passed by the Tribunal regard to the liability alone
is modified and 'pay and recovery' is ordered.
(iv) The present appellant - National Insurance Company Limited
is directed to 'pay' the entire compensation to the claimant and then
'recover' the same from the owner of the lorry matador tempo bearing
Registration No.KL-08-BB-2557.
(v)The National Insurance Company is directed to deposit the
balance awarded amount by the Tribunal to the credit of M.C.O.P.No.521
of 2015 within a period of three weeks from the date of receipt of copy of
this order and it is open to the Insurance Company to 'recover' the same
from the owner of the said lorry bearing Registration No.KL-08-
BB-2557, in the suitable manner known to law.
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C.M.A(MD).No.987 of 2021
(vi) The respondents 1 to 3/claimants are permitted to withdraw
the respective amount after following due process of law.
01.04.2022
Index:Yes/No
Internet:Yes/No
tta
To
1.The Motor Accident Claims Tribunal,
Special District Judge to deal with MCOP Cases,
Tiruchirappalli
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.987 of 2021
RMT.TEEKAA RAMAN.,J.
tta
JUDGMENT MADE IN
C.M.A(MD)No.987 of 2021
01.04.2022
https://www.mhc.tn.gov.in/judis
