S.Devaraj vs K.Gunasekar
2023 Latest Caselaw 8950 Mad

                                                                              C.M.A. No.768 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 25.07.2023

                                                            CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                    C.M.A.No.768 of 2022

                  S.Devaraj                            ..                                Appellant

                                                Vs.

                  1. K.Gunasekar

                  2. The Manager
                  IFFCO TOKIO General Insurance Co. Ltd.,
                  No.28/195, North Usman Road,
                  T.Nagar, Chennai – 17.           ..                                 Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the order and decreetal order dated 29.04.2019
                  made in MCOP No.325 of 2012 on the file of the Motor Accident Claims
                  Tribunal cum Principal Subordinate Judge (FAC), Kanchipuram.


                                    For Appellant      : Mr.S.Sankaralingam

                                    For Respondents : Mr.V.Manohar for R1
                                                Mr.M.Jayaraj for R2

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https://www.mhc.tn.gov.in/judis
                                                                               C.M.A. No.768 of 2022



                                        JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant

challenging the finding of the Tribunal exonerating the 1 st respondent from its

liability holding that as the rider of the offending motor cycle did not possess

a valid driving licence at the time of accident, the first respondent is not liable

to pay compensation.

2.The appellant filed M.C.O.P. No.325 of 2012 on the file of the Motor

Accident Claims Tribunal cum Principal Subordinate Judge (FAC),

Kanchipuram claiming a sum of Rs.10,00,000/- as compensation for the

injuries sustained by him in the accident that took place on 29.01.2012.

3. According to the appellant, on the date of accident, i.e. 29.01.2012

while he was travelling as a pillion rider in the motorcycle bearing

Regn.No.TN 09 0721 from Nemeli to Siruvalayam Village, near

Ganapathypuram to Senthamangalam road, the rider of the motor cycle

bearing Regn. No.TN 73X 4480, without following the traffic rules, rode the

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same in a rash and negligent manner and dashed against the motorcycle

in which the appellant was riding as pillion rider and caused the accident. In

the above said accident, the appellant sustained grievous injuries and hence

filed claim petition claiming compensation against the respondents.

4. The second respondent filed counter statement stating that the

accident has occurred due to collusion between two vehicles but the first

respondent had not impleaded the other vehicle and hence the petition is bad

for non-joinder of necessary parties. At the time of accident, the first

respondent was not possessing valid driving licence. Hence, the second

respondent is not liable to pay any compensation to the appellant and prayed

for dismissal of the claim petition.

5. Before the Tribunal, the appellant examined himself as PW1and

marked six documents as Exs.P.1 to Exs.P.6. On the side of the respondent,

one Thanikachalam was examined as RW1 and three documents were marked

as Exs.R1 to R3.

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6. The Tribunal after considering the evidence and documents filed on

the side of the appellant as well as the respondents, awarded a sum of

Rs.5,07,200/- as compensation to the appellant and directed the 1st respondent

to pay the compensation. The Tribunal dismissed the claim petition as against

the second respondent.

7. Challenging the said order of the Tribunal dismissing the claim

petition as against the second respondent from its liability, the appellant has

preferred the present appeal .

8. The learned counsel appearing for the appellant submitted that the

Tribunal, having held that the vehicle of the 1st respondent was insured with

the second respondent, ought not to have directed the first respondent to pay

the compensation to the appellant. The Tribunal ought to have directed the

second respondent/insurance company to pay the compensation amount at the

first instance and recover the same from the first respondent. In support of

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his contention, the learned counsel relied on the judgment of the Hon'ble

Supreme Court in National Insurance Co. Ltd. v. Swaran Singh reported in

2004 (1) ACJ 1 SCC. The learned counsel further contended that the

compensation awarded by the Tribunal towards pain and suffering,

transportation, medical expenses are meagre and prayed for allowing the

appeal.

9. Per contra, the learned counsel appearing for the first respondent

submitted that at the time of accident, the first respondent was holding a valid

driving licence to drive the vehicle. The Tribunal had not taken into

consideration the evidence let in by the first respondent to show that he had a

valid driving licence and hence no liability can be fixed on the first

respondent.

10. The learned counsel appearing for the second respondent/insurance

company contended that the award of the Tribunal is just and reasonable and

and need not be interfered with. In any event, since the liability was fixed on

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the first respondent, the second respondent/insurance company had no

opportunity to challenge the quantum of compensation awarded by the

Tribunal. The Tribunal had computed the compensation by adopting

multiplier method which is erroneous in the facts and circumstance of the case

and prayed for dismissal of the appeal.

11. Heard the learned counsel appearing for the appellant, first

respondent as well as second respondent and perused the materials available

on record.

12. The short question involved in the present appeal is whether the

Tribunal ought to have directed the second respondent/insurance company to

pay the compensation amount at the first instance and recover the same from

the first respondent.

13. Admittedly, the first and second respondent have not challenged the

award passed by the Tribunal. The first respondent though claims that he was

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possessing valid driving licence at the time of accident, he has not established

the said fact before the Tribunal, as can be seen from the findings of the

Tribunal. In any event, the first respondent has not challenged the said

finding. Hence, the finding of the Tribunal that the first respondent is liable to

pay the compensation cannot be faulted. However, the issue involved in this

appeal is whether the Tribunal ought to have directed the second

respondent/insurance company to pay the compensation amount at the first

instance and recover the same from the first respondent. Admittedly, the

offending vehicle of the first respondent was insured with the second

respondent/insurance company.

14. It is well setted that if the rider of the two wheeler or driver of the

four wheeler did not posses driving licence, the Insurance Company must

satisfy the award at the first instance and recover the same from the owner of

the vehicle. In the judgement reported in 2004 ACJ 1 SC [National Insurance

Co. Ltd., Vs. Swaran Singh and others], the Hon'ble Apex Court has held that

if the driver of the vehicle did not possess valid driving licence at the time of

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accident, the Insurance Company can be directed to pay the amount to the

claimant and then realise it from the owner of the offending vehicle. In the

judgment reported in 2012 1 TN MAC 226 [ICICI Lombard General

Insurance Co. Ltd., Vs. Annakkili], it has been held that the Insurance

Company cannot be exonerated from the liability to pay the compensation to

the third party claim for the reason that the driver had no licence or badge and

after paying the amount to claimant, recover the same from the owner of the

vehicle. The similar finding has been reiterated in another judgment reported

in 2012 1 TN MAC 536 [National Insurance Co. Ltd., Vs. T.Mathiazhagan].

15. By applying the said principle of law to the present case, the portion

of the award dismissing the claim petition as against the 2nd respondent-

Insurance Company, on the ground that the rider of the two wheeler belonging

to the 1st respondent did not possess driving licence, is set aside and the 2nd

respondent-Insurance Company is directed to pay the compensation amount

of Rs.5,07,200/- to the appellant at the first instance and later on, recover the

same from the 1st respondent, owner of the vehicle. In all other aspects, the

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award of the Tribunal is confirmed.

16. With the above observation, this Civil Miscellaneous Appeal is

partly allowed and the compensation awarded by the Tribunal at

Rs.5,07,200/- is confirmed together with interest at 7.5% per annum from the

date of petition till the date of deposit. It is made clear that the appellant is

not entitled for any interest for the delay period of 117 days in filing the

present appeal. The second respondent / Insurance Company is directed to

deposit the award amount, determined by Tribunal along with interest and

costs, within a period of six (6) weeks from the date of a receipt of copy of

this Judgment, at the first instance and recover the same from the 1 st

respondent. On such deposit, the appellant is permitted to withdraw the

award amount alongwith interest and costs. No costs.

25.07.2023 rgr Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

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SUNDER MOHAN, J

rgr

To

1.The Principal Subordinate Judge (FAC), Motor Accident Claims Tribunal, Kanchipuram.

2. The Section Officer, VR Section, High Court, Madras.

C.M.A.No.768 of 2022

25.07.2023

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