Madras High Court
National Insurance Company ... vs A.Petchimuthu on 20 June, 2023
C.M.A.(MD).No.1579 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1579 of 2011
National Insurance Company Limited,
Through its Branch Manager,
2A, Thirumakkulam North Street,
First Floor,
Tallakulam, Madurai Town,
Madurai District. ... Appellant/
2nd Respondent
-vs-
1. A.Petchimuthu
2. Rakku
3. Panchavarnam
4. Arumugam
5. Murugan
6. Muthukumar ... Respondents 1 to 6
/Petitioners
7. P.Jagadeeswaran ... 7th Respondent/
1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, against the judgment and decree in M.C.O.P.No.5 of 2010,
dated 09.12.2010 on the file of the Motor Accidents Claims Tribunal, Chief
Judicial Magistrate Court, Sivagangai.
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C.M.A.(MD).No.1579 of 2011
For Appellant : Mr.J.S.Murali
For Respondents : Mrs.N.S.Shanmugapriya
for R1 to R6
: No appearance – for R7
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the award passed by the Motor Accidents Claims
Tribunal/Chief Judicial Magistrate Court, Sivagangai, made in M.C.O.P.No.5
of 2010 primarily on the ground of liability.
2. According to the claimants, the deceased was sitting on the back side
of the bicycle and while on his way to hospital, she met with an accident on
18.06.2009 due to the rash and negligent driving on the part of the two
wheeler owned and driven by the first respondent. The claimants have sought
for compensation of a sum of Rs.4,00,000/- (Rupees Four Lakhs only).
3. The Insurance Company had filed a counter specifically contending
that the driver of the two wheeler was not holding effective driving license at
the relevant point of time.
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C.M.A.(MD).No.1579 of 2011
4. The Tribunal, after considering the oral and documentary evidence,
arrived at a finding that the Insurance Company has not established the fact
that the driver of the offending vehicle was not having an effective and valid
driving license at the relevant point of time. Based upon the said finding, the
Tribunal proceeded to fix the compensation at Rs.2,16,000/- (Rupees Two
Lakhs Sixteen Thousand only) and further held that the owner and the insurer
are jointly and severally liable to pay the said award amount. Challenging the
said award, the present appeal has been filed by the Insurance Company.
5. According to the learned counsel appearing for the appellant, they
have taken a specific stand in the counter that the driver of the two wheeler
was not having a valid and effective driving license on the date of the
accident. They have also issued a legal notice to the owner under Ex.R2. The
driving license was not produced even at the time of inspection of the vehicle
by the Motor Vehicle Inspector. The owner has voluntarily remained ex-parte.
Therefore, the driver of the vehicle was not having a driving license at the
relevant point of time. Hence, he prayed for allowing the appeal.
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C.M.A.(MD).No.1579 of 2011
6. Per contra, the learned counsel appearing for the respondents 1 to 6/
claimants has contended that even assuming that the driver of the two wheeler
was not having an effective driving license at the relevant point of time, that
would not effect the liability on the Insurance Company to satisfy the award.
The owner of the vehicle had remained ex-parte before the Tribunal and he
could not be served in the appeal.
7. I have carefully considered the submissions made by the learned
counsel on either side and perused the material on records.
8. The primary contention on the side of the Insurance Company is that
the driver of the offending vehicle was not having a valid driving license at
the relevant point of time. After receipt of notice in M.C.O.P proceedings, the
Insurance Company has issued a notice to the owner of the vehicle to produce
the Insurance Policy and the driving license. However, the said notice has
been returned with an endorsement that the “addressee is left”.
9. A perusal of Ex.P.3- Motor Vehicle Inspector's Report also indicates
that no driving license was produced along with the vehicle. Though the
owner was served with a notice before the Tribunal, he has not chosen to
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C.M.A.(MD).No.1579 of 2011
appear. Whether the driver of the offending vehicle was having a valid and
effective driving license at the relevant point of time or not, is in the special
knowledge of the owner of the vehicle. There is a statutory obligation on the
part of the owner of the vehicle to hand over the vehicle only to a person who
is having a valid and effective driving license. Therefore, whenever an
accident takes place, it is the duty on the part of the owner to establish before
the Court that the vehicle was handed over to a person holding a valid driving
license. In the present case, the Insurance Company has taken a specific stand
that the driver of the two wheeler was not having an effective driving license
on the date of accident. However, after receiving notice, the owner has not
entered appearance neither filed counter nor let in any oral evidence to
establish the fact that the driver viz., Muthuraman was having a driving
license on the date of accident. Therefore, the Tribunal was not right in
arriving at a finding that the Insurance Company has not established the fact
that the driver of the offending vehicle was not having valid driving license.
10. In view of the above said facts, it is clear that the vehicle has been
handed over by the owner of the vehicle to a person who was not having a
valid and effective driving license on the date of accident. It is not only a
violation of policy condition but also a statutory violation. Therefore, this
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C.M.A.(MD).No.1579 of 2011
Court is inclined to set aside the award of joint and several liability. The
appellant/Insurance Company shall satisfy the award and thereafter, is entitled
to recover the same, following the judgment of the Honourable Supreme
Court reported in (2004) 13 SCC 224 (Oriental Insurance Company Ltd.,
Vs. Nanjappan and others). In other respects, the award of the Tribunal is
confirmed.
11. Accordingly, this Civil Miscellaneous Appeal is allowed to the
extent as stated above. There shall be no order as to costs.
20.06.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Motor Accidents Claims Tribunal,
Chief Judicial Magistrate Court,
Sivagangai.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.1579 of 2011
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.1579 of 2011
20.06.2023
https://www.mhc.tn.gov.in/judis
