Madras High Court
Ramappa vs Branch Manager on 1 August, 2023
C.M.A.No.1785 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2023
CORAM :
THE HON'BLE MR. JUSTICE P.VELMURUGAN
C.M.A.No.1785 of 2018
1.Ramappa
2.Narayanamma
3.Krishnappa
4.Rajappa
5.Venkataswamy ... Appellants
v.
1.T.Ramakrishna Reddy
2.Divisional Manager,
United India Insurance Company Ltd.,
No.12003-A, Old Bangalore Road,
Hosur Taluk, Krishnagiri District. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgment and decree in M.C.O.P.No.247 of
2007, dated 21.07.2010 on the file of the Motor Accident Claims Tribunal,
Sub Court, Hosur.
For Appellants : Mr.PA.Sudesh Kumar
For Respondents : R1-Notice -Dispense with
No appearance for R2
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C.M.A.No.1785 of 2018
JUDGMENT
This appeal has been filed as against the Award dated
21.07.2010 made in M.C.O.P.No.247 of 2007 on the file of the Motor
Accidents Claims Tribunal /Sub Court, Hosur.
2. For the sake of convenience, the parties are referred to as per
their ranking before the Tribunal.
3. The brief facts of the case are as follows:
The claimants 1 to 5 are the brothers and sister of the deceased
Govindappa. On 30.12.2016 at about 10.00 p.m., when the deceased was
walking on the left side of Hosur to Mathigiri Road, near Old Mathigiri bus
stop, a TVS Victor Motor bike bearing Registration No.TN-24-Y-3369
came from Hosur side, driven by the first respondent in a rash and negligent
manner, hit behind the deceased. Due to the said impact, the deceased
sustained grievous injuries. Immediately, the deceased was taken to
Government Hospital, Hosur for treatment, but he died due to fatal injuries
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C.M.A.No.1785 of 2018
at 10.30 p.m., on the same day. Hence, the claimants claimed a sum
Rs.10,00,000/- as compensation.
4. The second respondent/Insurance Company filed their
counter affidavit denying the averments and allegations made in the claim
petition and prayed for dismissal of the claim petition.
5. To substantiate the case on the side of the claimants, P.W.1
and P.W.2 were examined and Ex.P1 to Ex.P9 were marked. On the side of
the second respondent, R.W.1 to R.W.3 were examined and Ex.R1 to Ex.R5
were marked.
6. The Tribunal, after considering the oral and documentary
evidence available on record, held that the accident had occurred only due
to rash and negligent driving of the driver-cum-owner of the offending
vehicle i.e. the first respondent and awarded a total compensation of
Rs.2,77,800/- together with interest at 7.5% per annum from the date of
claim petition till the date of realisation and the Tribunal further observed
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C.M.A.No.1785 of 2018
that the first respondent is liable to pay the compensation to the claimants
and directed the first respondent to deposit the entire compensation with
interest at 7.5% per annum from the date of claim petition till the date of
realisation.
7. Not being satisfied with the quantum of compensation
awarded by the Tribunal, the claimants have approached this Court for
enhancement of compensation.
8. The learned counsel for the appellants/claimants submitted
that the Tribunal held that, due to rash and negligent driving of the driver-
cum-owner of the offending vehicle, the deceased sustained grievous
injuries and succumbed to death and that liability was fixed only on the first
respondent. The second respondent is the insurer of the offending vehicle
and there is a violation of policy condition, however, the Tribunal failed to
adopt pay and recover method. Neither the owner, nor the insurer of the
vehicle filed any appeal or cross objection, challenging the award passed by
the Tribunal. He further submitted that the claimants are poor illiterate
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C.M.A.No.1785 of 2018
people and considering the economical conditions and the pathetic situation
of the claimants, this Court as an Appellate Court is empowered to order
pay and recover method. He further submitted that the insurer can always
satisfy the claimants and pay the amount to the claimants at the first instance
to the claimants and recover the said award amount from the owner of the
offending vehicle.
9. The learned counsel for the appellants, in support of his
arguments placed reliance on the judgments of the Hon’ble Supreme Court
in the case of Deddappa and Others Vs. Branch Manager, National
Insurance Co.Ltd., reported in (2008) 2 SCC 595 and Oriental Insurance
Company Limited Vs. Zaharulnisha And Others reported in (2008) 12
SCC 385.
10. Heard the learned counsel for the appellants and perused
the records.
11. Despite service of notice, respondents 1 and 2 have not
chosen to enter appearance either through a counsel or in person.
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12. The accident is admitted. The offending vehicle involved in
the accident is also admitted. The offending vehicle was insured with the
second respondent/Insurance Company, which is also not in dispute.
13. The only dispute now raised before this Court is regarding
the quantum of compensation awarded by the Tribunal and fixing the
liability only on the first respondent.
14. On a perusal of the entire materials available on record, it is
seen that the accident had occurred due to rash and negligent driving of the
driver-cum-owner of the Motorcycle bearing Registration No.TN-24-Y-
3369 and therefore, the negligence was fixed only on the first respondent.
The Tribunal also held that since the rider of the offending vehicle did not
possess valid driving licence at the time of accident and therefore, insurance
company is not liable to pay any compensation to the claimants. The
Tribunal, while following the decision of the Hon'ble Supreme Court on the
subject held that the Insurance Company is not liable to pay compensation,
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C.M.A.No.1785 of 2018
as the owner of the offending vehicle is only liable for the negligence and
he has to pay compensation.
15. Though the learned counsel for the appellants has not
disputed the decision of the Hon’ble Supreme Court referred to in the
Award passed by the Tribunal, this Court finds that when the owner of the
vehicle has not filed any appeal, since the claimants are poor litigants, the
Court can order pay and recover option and that the vehicle is insured with
the Insurance Company.
16. In the decision cited supra, the Hon'ble Court held that if
there is any violation of policy conditions, the Insurance Company need not
pay any compensation, by invoking Article 142 of Constitution of India.
However, considering the economical condition of the claimants, especially
when the owner of the vehicle has not disputed the liability and he has not
filed any appeal challenging the findings of the Tribunal, the Insurance
Company can pay first and recover the same from the owner of the
offending vehicle.
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17. It is settled principle of law that Insurance Company is not
liable to compensate the third party for the accident, but the Hon'ble
Supreme Court, in exercise of its jurisdiction under Article 142 of
Constitution of India, can direct the Insurance Company to compensate the
claimants and to recover the amount from the owner of the vehicle.
However, the Appellate Court or Tribunal is not having power to invoke
Article 142 of Constitution of India. Therefore, this Court is not convinced
with the submissions made by the learned counsel for the appellants.
18. This Court, as an Appellate Court, so also, this Court being
a fact finding Court, had analysed the issue independently and re-
appreciates the entire evidence to render independent findings on the
subject.
19. This Court, while re-appreciating the entire evidence finds
that the accident had occurred only due to rash and negligent driving of the
rider of the offending vehicle. However, at the time of accident, the rider of
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the said vehicle did not possess any valid driving licence, therefore, the
driver of the said vehicle is liable to pay compensation. The second
respondent is the insurer and due to violation of the policy conditions, the
second respondent was exonerated from the liability, before the Tribunal.
This Court does not find any perversity in the findings of the Tribunal and
also the decision relied on by the learned counsel for the appellants, cited
supra, are not applicable to the present case.
20. In view of the above, this Civil Miscellaneous Appeal is
dismissed. There shall be no order as to costs in the present appeal.
21. The owner of offending vehicle/first respondent is directed
to deposit the above entire award amount along with 7.5% interest and costs
as awarded by the Tribunal, from the date of claim petition till the date of
deposit, less the amount already deposited, if any, within a period of six
weeks from the date of receipt of a copy of this judgment. On such deposit,
the Tribunal is directed to credit the compensation to the Bank Account of
the claimants in line with the judgment of a Division Bench of this Court in
C.M.A.No.428 of 2016, dated 11.03.2016, reported in 2016 (2) LW 561
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C.M.A.No.1785 of 2018
(The Divisional Manager, The Oriental Insurance Company Limited,
Kannur Vs. Rajesh and others). The claimants are permitted to withdraw
the award amount, less the amount already withdrawn, if any, together with
interest and costs.
01.08.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
To
1. The Motor Accident Claims Tribunal,
Sub Court,
Hosur.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A.No.1785 of 2018
P.VELMURUGAN, J.
ms
C.M.A.No.1785 of 2018
01.08.2023
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