Madras High Court
The Branch Manager vs Ponnalagu on 2 June, 2023
CMA(MD).No.30 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.06.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.30 of 2012
and
M.P(MD)No.1 of 2012
The Branch Manager,
The New India Assurance Company Ltd.,
Branch Office,
480, Sekkalai Road,
Karaikudi,
Sivagangai District. ....Appellant
Vs.
1.Ponnalagu
2.Minor.Subramanian
3.Minor Saravanan
4.Minor Vasanth
5.Karuppan
6.Alagu ... Respondents
(Minor respondents 2 to 4 are represented through their mother and
natural guardian Ponnalagu)
1/8
https://www.mhc.tn.gov.in/judis
CMA(MD).No.30 of 2012
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 to set aside the order and decree dated
12.01.2011 in M.C.O.P.No.390 of 2008 on the file of the Motor
Accidents Claims Tribunal, Principal District and Sessions Judge,
Pudukottai and to allow the appeal.
For Appellant : Mr.K.Murugesan
For Respondents : Mr.R.Aranvind for R6
No appearance for R1 to R4
Batta due for R5
JUDGMENT
The present Appeal has been filed by the Insurance Company
challenging the award passed by the Motor Accident Claims Tribunal
in M.C.O.P.No.390 of 2008 primarily on the ground of liability.
2. According to the claimants, while the deceased was travelling
in a bicycle on 18.11.2007, a tipper lorry belonging to the first
respondent came in the same direction and dashed against the rear side
of the bicycle in which the deceased Adaikkan died on the spot. The
wife, minor children and the father of the deceased have filed the claim
petition seeking compensation of Rs.15,00,000/-.
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CMA(MD).No.30 of 2012
3. The owner of the tipper lorry remained exparte and the
Insurance Company had filed a counter specifically contending that the
driver of the tipper lorry namely, Pandiyan, did not have Driving
Licence at the relevant point of time. The Company further pointed out
that they would produce the charge sheet, in which, the driver was
charged with Section 3 of the Motor Vehicles Act. After considering
the oral and documentary evidence, the Tribunal had come to a
conclusion that the accident has taken place due to the rash and
negligent driving on the part of the tipper lorry driver. The Tribunal
further found that the Insurance Company has not proved that the
driver of the tipper lorry was not having valid Driving Licence at the
relevant point of time. Therefore, the Tribunal proceeded to fix the
quantum of compensation at Rs.3,38,400/-. Challenging the said
award, the present Appeal has been filed by the Insurance Company.
4. According to the learned counsel appearing for the Insurance
Company, the Company has taken a specific stand in the counter that
the driver of the tipper lorry did not have any valid Driving Licence at
the relevant point of time. The Company has sent a legal notice to the
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CMA(MD).No.30 of 2012
insured under Ex.R1 on 27.07.2010 calling upon him to produce all the
relevant documents relating to the vehicle and the Driving Licence of
the driver. Though the said notice has been received by the insured, he
has not chosen to reply. The learned counsel for the appellant has
further contended that the Company has examined the Officers from
the Regional Transport Office as DW1 and DW2 and they have also
filed the charge sheet as Ex.X3 which would clearly indicate that the
driver of the tipper lorry has been charged for the offence under
Section 3 of the Motor Vehicles Act. Therefore, the Tribunal was not
right in arriving at a conclusion that it is not known whether the driver
of the tipper lorry was in possession of Driving Licence or not. The
Tribunal has proceeded to fix the liability on the Insurance Company
without any relief for recovering the same from the owner of the tipper
lorry in view of the violation of the policy conditions. Hence, he
prayed for allowing the appeal.
5. Per contra, the learned counsel appearing for the owner of the
tipper lorry had contended that the Tribunal has arrived at a specific
finding that the Insurance Company has not established beyond doubt
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CMA(MD).No.30 of 2012
that the driver of the tipper lorry was not having Driving Licence at the
relevant point of time. When the Insurance Company has not
established about the non-holding of the Driving Licence by the tipper
lorry driver, the Tribunal cannot be faulted for fixing the liability on
the Insurance Company. He further contended that the award passed
by the Tribunal may be confirmed in view of the subsistence of the
Insurance company.
6. I have carefully considered the submissions made on either
side.
7. The specific contention of the appellant / Insurance company
is that the driver of the offending vehicle namely, the tipper lorry, was
not having any Driving Licence at the relevant point of time. The
Company has issued Ex.R1 notice to the owner of the tipper lorry
calling upon him to produce the Driving Licence. Though the owner
had received the notice, he has not chosen to reply. Before the
Tribunal, the owner has remained exparte and he has not chosen to
examine himself in order to establish that his driver was having
Driving Licence at the relevant point of time. A perusal of Ex.X3
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CMA(MD).No.30 of 2012
indicates that the driver of the offending vehicle has been charge
sheeted under Section 3 of the Motor Vehicles Act. Therefore, it is
clear that the driver was not having Driving Licence at the relevant
point of time. The finding of the Tribunal that it is not known whether
the driver was having Driving Licence at the relevant point of time or
not is not legally sustainable. In view of the above said findings, it is
clear that there is a clear breach of Policy Condition on the part of the
owner of the tipper lorry. Therefore, the Tribunal ought to have
directed the Insurance Company to satisfy the award and thereafter
recover the same from the owner of the vehicle, in view of the violation
of the Policy condition.
8. In view of the above said deliberations, the Civil
Miscellaneous Appeal is partly allowed and this Court proceeds to pass
the following order.
(a) The quantum of award is confirmed.
(b) The Insurance company is liable to satisfy the award and
thereafter recover the same from the owner of the offending vehicle,
namely, first respondent in the claim petition.
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CMA(MD).No.30 of 2012
(c) With other respects, the award of the Tribunal stands
confirmed.
(d) No costs. Consequently, the connected Miscellaneous
Petition is closed.
02.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
mbi
To
1.The Motor Accidents Claims Tribunal,
Principal District and Sessions Judge, Pudukottai
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA(MD).No.30 of 2012
R.VIJAYAKUMAR, J.
mbi
C.M.A(MD)No.30 of 2012
02.06.2023
https://www.mhc.tn.gov.in/judis
