Madras High Court
The Divisional Manager vs Sekar on 24 March, 2022
C.M.A.No.96 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :24.03.2022
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A.No.96 of 2013
and M.P.No.1 of 2013
The Divisional Manager
The New India Assurance Co. Ltd.,
Vellore ... Appellant
Vs.
1.Sekar
2.P.Govindan
3.A.Jaganathan ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 (1) of Motor
Vehicles Act 1988 to set aside the Decree and order dated 5th day of March 2003
made in MCOP No.57 of 2001 by learned Judge of the Motor Accident Claims
Tribunal (Subordinate Court) Cheyyar, Thiruvannamalai District and be pleased
to dismiss the above claim petition.
For Appellant : Mr.K.Padmanabhan
For Respondents : Mr.K.G.Senthil Kumar for R1
Service awaited for R2
No appearance for R3
JUDGMENT
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C.M.A.No.96 of 2013
This appeal has been filed by the insurance company challenging the
impugned award dated 05.03.2003 passed by the Motor Accident Claims Tribunal
(Subordinate Court) Cheyyar, Thiruvannamalai District in MCOP No.57 of 2001.
2. The appellant is the 3rd respondent in MCOP No.57 of 2001 on the
file of the Motor Accident Claims Tribunal (Subordinate Court) Cheyyar,
Thiruvannamalai District in MCOP No.57 of 2001. The first respondent/Claimant
filed the said Claim Petition, claiming a sum of Rs.25,00,000/- as compensation
for the injuries sustained by him in the accident that took place on 06.07.2000.
3. The Appellant Insurance Company has primarily challenged the
impugned award questioning its liability to pay compensation as according to
them, the injured/claimant was not having any licence to drive the Moped on the
date of accident and therefore, they are not liable to pay compensation under
Section 10 of the Motor Vehicles Act.
4. Heard Mr.K.Padmanabhan, learned counsel for the
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C.M.A.No.96 of 2013
appellant/Insurance Comapany and Mr. Mr.K.G.Senthil Kumar, learned counsel
for the first respondent/claimant. The third respondent had remained ex parte
before the Tribunal and there is no representation on behalf of him before this
Court also.
5. The case of the claimant/1st respondent herein is that on
06.07.2000 at about 08.15 p.m., when he was travelling along with her daughter
in his TVS Champ vehicle bearing Registration No.TSG No.4079 near Cheyyar
bridge, the 2nd respondent rider of the Bajaj Scooter bearing Reg.No.TN 23/X
3763 belonging to the 3rd respondent rode the vehicle in a rash and negligent
manner and dashed against the claimant/1st respondent's vehicle and caused
accident. The accident occurred due to rash and negligent riding by the 2nd
respondent, rider of the Bajaj Scooter. In the said accident, the 1 st respondent
suffered multiple injuries and fracture. For the injuries suffered by him, the 1 st
respondent claimed compensation against the respondents 2 and 3 and appellant
as Driver, owner and insurer of the offending vehicle.
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C.M.A.No.96 of 2013
6. According to the appellant/insurance company, at the time of
accident, the 2nd respondent/rider of two wheeler did not possess valid Driving
Licence. For violation of policy conditions, the appellant is not liable to indemnify
the 3rd respondent, owner of the vehicle.
7. Before the Tribunal, the 1st respondent examined himself as P.W.1,
examined his daughter as P.W.2 and Dr.Rajasekar as P.W.3 and marked
13 Documents as Exs.P1 to P13. The appellant examined two witnesses as R.W.1
and R.W.2 and marked Ex.R1 document. The Tribunal after going through entire
evidence, awarded compensation of Rs.6,00,000/- with interest at the rate of 9%
per annum. Challenging the judgment and decree of the Tribunal, the present
appeal has been filed by the Insurance Company.
8. The learned counsel for the appellant would submit that they have
taken defence before the Tribunal that the second respondent/rider of the two
wheeler was not issued any licence to drive two wheeler. It is further submitted
that the second respondent did not produce any proof by producing driving licence
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C.M.A.No.96 of 2013
issued to him before the Tribunal. According to the appellant, summons would
have been sent to RTO requesting to produce the driving licence if any issued to
the second respondent. Since no summons sent or notice calling upon second and
third respondent to produce the driving licence had been ordered by the Tribunal,
the liability on the appellant has to be exonerated.
9. Learned counsel appearing for the first respondent/claimant would
submit that the first respondent was aged about 43 years at the time of accident
and he was working as a bus conductor. Due to the said accident, he suffered
permanent disability and grievous injuries. The findings of the Tribunal is that the
accident occurred due to rash and negligent driving of the second respondent
herein. The learned Judge, Tribunal, passed the award fixing the liability on the
appellant herein being the insurer of the offending vehicle and the rider and owner
of the two wheeler and directed to pay the compensation jointly and severally,
which finding need not be interfered with.
10. Heard both sides.
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C.M.A.No.96 of 2013
11. A perusal of the award would go to show that the 2 nd respondent,
rider of the Bajaj Scooter rode the vehicle without any licence and he has paid a
sum of Rs.800/- as fine before the Judicial Magistrate Court, Cheyyar for not
possessing valid Driving Licence.
13. Learned counsel for the appellant has relied upon the
Three-Judges Bench of the Hon'ble Apex Court in a Judgment in the case of Beli
Ram V. Rajinder Kumar and another, reported in 2020(2) TN MAC 445 (SC):
2020 (3) MWN (Civil) 338 (SC): 2020 SCC Online SC 769, wherein the Apex
Court held that when a tort-feasor failed to renew the Driving Licence within 30
days of expiry of Driving Licence, as per the provisions of the Motor Vehicles Act,
the Insurance Company is not liable to pay Compensation, as Owner of the
Vehicle has committed breach of terms of Policy by entrusting the vehicle to a
person not possessing a valid Driving Licence. The Hon'ble Apex Court
considered the following Judgments while arriving at the above decision:
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C.M.A.No.96 of 2013
(i).(2004) 3 SCC 297 [National Insurance Co. Ltd. v. Swaran Singh and
Ors.],
(ii) (2020) 4 SCC 49 [Nirmala Kothari v. United India Insurance
Company Limited],
(iii) (2015) 2 TAC 52 [Tata AIG General Insurance Co. Ltd. v.
Akansha & Ors.],
(iv) (2015) 111 ALR 275 [The Oriental Insurance Co. Ltd. v. Manoj
Kumar & Ors.] and
(v) 2012 ACJ 1891 [National Insurance Co. Ltd. v. Hem Raj & Ors].
14. The Hon'ble Apex Court in the decision in Beli Ram V. Rajinder
Kumar and another, reported in 2020 SCC Online SC 769 (cited supra), in
paragraph Nos. 20 and 21, has held as follows:
“20. The last judgment is of the Himachal
Pradesh High Court in National Insurance Co. Ltd. v.
Hem Raj & Ors. This was, once again, a case of an
originally valid licence, which had expired, there was
no question of a fake licence. It was opined that the
conclusions to be drawn from the observations of the
judgment in the Swaran Singh case of this Court, were
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C.M.A.No.96 of 2013
that the insurance company can defend an action on the
ground that the driver was not duly licensed on the date
of the accident, i.e., an expired licence having not been
renewed within thirty (30) days of the expiry of the
licence as provided in Sections 14 & 15 of the MV Act.
In this context it was observed that the Swaran Singh
case did not deal with the consequences if the licence is
not renewed within the period of thirty (30) days. If the
driving licence is not renewed within thirty (30) days, it
was held, the driver neither had an effective driving
licence nor can he said to be duly licenced. The
conclusion, thus, was that the driver, who permits his
licence to expire and does not get it renewed till after
the accident, cannot claim that it should be deemed that
the licence is renewed retrospectively.
21. The learned Judge debated the question of
the consequences of the MV Act being a beneficial piece
of legislation. Thus, if two interpretations were possible,
it was opined that the one, which is in favour of the
claimants should be given, but violence should not be
done to the clear and plain language of the Statute.
Thus, while protecting the rights of the claimants by
asking the Insurance Company to deposit the amount,
the recovery of the same from the insured would follow
as the sympathy can only be for the victim of the
accident. The right which has to be protected, is of the
victim and not the Owner of the vehicle. ”
15. Keeping in mind the principles laid down by the Honourable Supreme
Court, this court is of the considered view that the award passed by the Tribunal
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C.M.A.No.96 of 2013
directing the insurance company and the rider and owner of the vehicle to pay the
compensation amount awarded to the claimants directly and severally, cannot be
found fault with.
16. In the light of the above settled principles of law, interference to the
award passed by the Tribunal does not arise. The impugned Award passed
directing the insurer, rider and insured to pay the compensation jointly and
severally holds good. The insurance company is directed to pay the compensation
at the first instance and recover from the rider and owner of the vehicle later. So
far as recovery of the amount from the rider and owner of the vehicle is concerned,
the insurance company shall recover as held in the decision in Oriental
Insurance Co. Ltd., Vs. Nanjappan and others (2004) 13 SCC 224.
17. In the result, the Civil Miscellaneous Appeals are Partly Allowed with a
direction to the appellant insurance company to pay and recover the
compensation. The appellant insurance company is directed to deposit the entire
award amount with interest at the rate of 7.5% per annum and cost, less the
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C.M.A.No.96 of 2013
amount already deposited. On such deposit, the claimant is entitled to withdraw
the same. Interim stay stand vacated. No costs.
24.03.2022
Intex : Yes/No
Internet : Yes/No
msv/nvsri
To
1.The Motor Accident Claims
Tribunal (Subordinate Court) Cheyyar,
Thiruvannamalai District
2.The Section Officer, V.R.Section,
Madras High Court,
Chennai.
J.NISHA BANU,J.
Msv/nvsri
https://www.mhc.tn.gov.in/judis
C.M.A.No.96 of 2013
C.M.A.No.96 of 2013
24.03.2022
https://www.mhc.tn.gov.in/judis
