Madras High Court
Iffco Tokio General Insurance ... vs C.Mohan on 7 June, 2023
C.M.A.No.2300 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.06..2023
CORAM
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
C.M.A.No. 2300 of 2014
and MP.No.1 of 2014
Iffco Tokio General Insurance Co.Ltd.,
No.145/131, Ground Floor,
Nelson Manickam Road,
Chennai – 600 029. ... Appellant/2nd respondent
..Vs..
1.C.Mohan
2.C.Selvaraj ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, as against the judgment and decree dated 19.12.2011
made in M.C.O.P.No.127 of 2007 on the file of the Motor Accidents Claims
Tribunal, Sub Judge, Cheyyar.
For Appellant : Mr. Michael Visuvasam
For Respondents : Mr.S.Makesh for R1
(Vakalat not filed)
R2 - unclaimed
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company to set aside the judgment and decree dated
19.12.2011 made in M.C.O.P.No.127 of 2007 on the file of the Motor
Accidents Claims Tribunal, Subordinate Judge, Cheyyar.
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C.M.A.No.2300 of 2014
2. The case of the appellant is that on 17.01.2007 at 6.30 p.m., while
the claimant was proceeding in his two wheeler from Perumanthangal
Village to Perungattur Village, a Bajaj two wheeler bearing Regn.No.TN-
20-AB-4657 belonging to the second respondent and insured with the
appellant, driven by its rider in a rash and negligent manner, which came in
the opposite direction, hit against the claimant's vehicle. Due to the said
impact, the injured claimant sustained grievous injuries. Claiming a
compensation of Rs.5,00,000/-, the claimant filed a petition in
MCOP.No.127 of 2007 before Motor Accidents Claims Tribunal, (Sub-
Judge, Cheyyar).
3. The Tribunal adjudicated the issues with reference to the
documents and evidences. The Tribunal made a clear finding that the
accident occurred only due to the rash and negligent driving of the rider of
the Bajaj two wheeler bearing Regn.No.TN-20-AB-4657 and at the time of
accident, the said vehicle is covered by an Insurance Policy which is not in
dispute. Accordingly, the appellant/Insurance Company and the second
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C.M.A.No.2300 of 2014
respondent are jointly and severally made liable to pay the compensation of
Rs.1,69,200/- to the claimant.
4. The learned counsel for the appellant has submitted that the
Judgment and decree of the Tribunal is contrary to law, weight of evidence
and probabilities of the case. He further submitted that it grossly erred in
holding that the appellant is liable where it is clearly proved that the owner
cum driver of the motor cycle had no driving license and was prosecuted
under Section 3 of the MV Act for not possessing driving license. It failed
to appreciate that driving the motorcycle without possessing driving license
is against the provisions of the M.V. Act, 1988. It failed to observe that the
insurer is not liable to indemnify the loss sustained by the insured cum
owner of the vehicle since he has willfully committed a breach of policy
condition by riding the insured vehicle without any license on the date of
accident. It has overlooked the various decisions of the Hon'ble Supreme
Court of India, exonerating the Insurance Company of its liability in cases
wherein there was no driving license at all. It has grossly erred by fixing
liability on the Insurance Company merely because the vehicle is insured
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C.M.A.No.2300 of 2014
with them, in the absence of compliance by the insured/owner as required
under the provisions of M.V Act and the conditions of the policy of
insurance, without even granting right of recovery. The Tribunal in
fastening liability on the insurer is unsustainable and liable to be set aside in
the interest of justice. He further submitted that the appellant has already
deposited the compensation amount as ordered by the Tribunal. Hence, he
prays to allow this appeal by setting aside the order of the Tribunal.
5. The learned counsel appearing on behalf of the first respondent
has disputed the contention by stating that the Tribunal has granted
reasonable compensation under various heads. He further submitted that the
liability fixed on the part of the Insurance Company and the owner of the
vehicle jointly and severally is correct. Therefore, it does not call for any
interference. Hence the appeal is liable to be dismissed.
6. Heard the learned counsel for the appellant and the learned
counsel for the first respondent and perused the entire materials available on
record.
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C.M.A.No.2300 of 2014
7. Before the Tribunal, on the side of the claimant, two witnesses
were examined as PW1 and PW2 and thirteen documents were marked as
Ex.P1 to Ex.P13. On the side of the respondents, one witnesses was
examined as RW1 and one document was marked as Ex.R1.
8. A perusal of the award would reveal that Ex.P1 - copy of the First
Information Report was registered against the two wheeler bearing
Regn.No.TN-20-AB-4657 stating that the rider of the said vehicle was
responsible for the accident, which corroborated with the version of
claimant. But, at the time of the accident, the rider of the Bajaj two wheeler
bearing Regn.No.TN-20-AB-4657 did not possess the valid and effective
driving license to drive the said vehicle. However, there was Insurance
policy coverage and R.C.Book and learners license for the said vehicle as
seen from the records and the R.C.Book, Insurance Policy and learner's
license were marked as Ex.PW3, PW4 and PW5 respectively before the
Tribunal.
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C.M.A.No.2300 of 2014
9. It is now settled law that whenever the driver of the insured vehicle
was not possessing a driving license at the time of the accident, the
Insurance Company will have to pay the compensation amount to the
claimant and recover the same from the owner of the vehicle (insured).
However, as seen from the impugned award, without considering the
aforesaid settled law, the Tribunal has fixed the liability on the appellant
and the second respondent jointly and severally who are the insurer and the
owner of the vehicle respectively and failed to award pay and recovery
rights to the appellant/Insurance Company. Therefore, this Court is of the
opinion that it would be appropriate to fix the liability on the
appellant/Insurance Company to pay the compensation to the claimant and
thereafter, recover the same from the owner of the vehicle. Therefore, this
Court is inclined to modify the finding of the Tribunal in respect of pay and
recovery. Except the same, there is no modification with regard to the
quantum of compensation awarded by the Tribunal.
10. In the result,
(i) This Appeal is allowed. Consequently, connected miscellaneous
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C.M.A.No.2300 of 2014
petition is closed. No costs.
(ii) The liability fixed on the appellant/Insurance Company and the
first respondent by the Tribunal under the impugned award is set aside.
(iii) Since the appellant/Insurance Company has already deposited
the Award amount together with interest from the date of claim till the date
of deposit and costs as assessed by the Tribunal, to the credit of
MCOP.No.127 of 2007, it is now permitted to recover the same from the
owner of the vehicle.
(iv) The owner of the vehicle is directed to deposit the entire award
amount as ordered by the Tribunal, to the credit of MCOP.No.127 of 2007,
within a period of six weeks from the date of receipt of a copy of this
Judgment, in accordance with law.
(v) On such deposit being made, the Tribunal is directed to transfer
the award amount along with accrued interest to the bank account of the
claimant through RTGS within a period of two weeks thereafter.
Index:Yes/No 07.06.2023
Internet:Yes/No
gv
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C.M.A.No.2300 of 2014
A.A.NAKKIRAN, J.
gv
To
1. The Motor Accidents Claims Tribunal,
Sub Judge, Cheyyar.
2.The Section Officer
V.R.Section,
High Court of Madras.
C.M.A.No. 2300 of 2014
and
MP.No.1 of 2014
07.06.2023
https://www.mhc.tn.gov.in/judis
