Mariammal vs Subbaiah
2022 Latest Caselaw 4365 Mad

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED: 07.03.2022

                                                   CORAM:

                           THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                          C.M.A(MD)No.1161 of 2011

                     1.Mariammal
                     2.Maheshwari(died)
                     3.R.Ganesan
                     4.G.Arjun Pandi
                     5.G.Muniselvam
                     6.G.Sankar Ganesh                                       ... Appellants
                     (Appellants 3 to 6 are brought on record as LRs
                     of deceased second appellant vide Court order
                     dated 22,.06.2017 made in M.P(MD) Nos.1 to 3 of 2015)

                                                          vs.

                     1.Subbaiah

                     2.The Manager,
                       Oriental Insurance Company Ltd.,
                       Palkot Town,
                       Opposite of Railway Station,
                       Kerala State.                                  ... Respondents


                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the

                     Motor Vehicles Act praying this Court to set aside the judgment and


                     1/6
https://www.mhc.tn.gov.in/judis
                     award dated 26.04.2010 passed in M.A.C.O.P.No.5 of 2008 on the file of

                     the Motor Accident Claims Tribunal cum Chief Judicial Magistrate

                     Court, Srivilliputhur, Viruthunagar District, as illegal and consequently

                     directing the second respondent to pay the compensation and enhance the

                     quantum of compensation.



                                       For Appellants        : Mr.A.Marthandavarman


                                       For R1                : Mr.J.Suresh

                                       For R2                : Mr.C.Jawahar Ravindran



                                                        JUDGMENT

************

The claimants, who are the appellants herein filed MCOP No.5 of

2003 claiming compensation for the death of one Sundrarajan, husband

of the first appellant.

2.During the trial, the Insurance Company filed a counter

statement denying the liability on the ground that the driver of the

offending vehicle insured with them, does not possess the driving licence

https://www.mhc.tn.gov.in/judis and hence, it is a violation of the policy conditions and they are not liable

to pay the compensation. The owner of the vehicle is arrayed as first

respondent.

3.The tribunal, on consideration of the oral and documentary

evidence of R.W.1 and R.W.2 coupled with Ex.R2 to Ex.R7 including the

report of the Motor Vehicle Inspector, has come to the conclusion that the

driver of the offending vehicle does not possess driving licence on the

date of the accident. In fact, the first respondent/owner has also paid

penalty as could be seen from Ex.R6 and R7. The tribunal has dismissed

the Motor Accident Claims Petition against the insurance company.

Hence, the appellants have filed the above ci

vil miscellaneous Appeal.

4.After hearing the learned counsel for the claimants, the learned

counsel for the owner of the vehicle and learned counsel for the

Insurance Company and also taking note of the judgment of the Hon'ble

Supreme Court in the case of Shamanna and another vs. Divisional

Manager, Oriental Insurance Company Limited and Others reported in

(2018) 9 SCC 650, wherein it is held that when the driver of the

https://www.mhc.tn.gov.in/judis offending vehicle does not possess driving licence on the date of the

accident, the insurance company is not liable, however on the judicial

pronouncement, the insurance company is directed to pay and recover the

amount from the owner, this Court holds that the order of the dismissal

against the second respondent/insurance company is set aside and

modified into pay and recover. On the quantum of compensation, I find

that the same is just and reasonable. Hence, quantum and interest

awarded by the tribunal is kept intact.

5.In the result, this Civil Miscellaneous Appeal is allowed in part.

The award passed in MCOP No.5 of 2008 is set aside to the limited

extent of liability of the second respondent/insurance company as to that

of pay and recover. The second respondent – Insurance Company is

directed to deposit the compensation awarded by the Tribunal, i.e.,

Rs.3,10,000/- together with interest at the rate of 7.5% per annum (if not

already deposited) to the credit of M.C.O.P.No.5 of 2008, on the file of

the Motor Accidents Claims Tribunal cum Chief Judicial Magistrate,

Viruthunagar District at Srivilliputhur within a period of eight weeks

from the date of receipt of a copy of this order and then recover the same

from the first respondent/ owner of the vehicle in the manner known to

https://www.mhc.tn.gov.in/judis law. On such deposit being made by the second respondent/Insurance

Company, the appellants is permitted to withdraw the same, as

apportioned by the Tribunal, after following the due process of law.

No costs.

07.03.2022

Index :Yes/No Internet:Yes/No

To

1.The Motor Accident Claims Tribunal cum Chief Judicial Magistrate Court, Viruthunagar District at Srivilliputhur.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis RMT.TEEKAA RAMAN.,J.

cp

JUDGMENT MADE IN C.M.A(MD)No.1161 of 2011

07.03.2022

https://www.mhc.tn.gov.in/judis