Madras High Court
The Branch Manager vs Govindasamy on 26 June, 2023
C.M.A(MD).No.471 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.06.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.471 of 2019
and
C.M.P(MD)No.5549 of 2019
The Branch Manager,
New India Assurance Company Limited,
96, Bharathiyar Road,
Sattur.
(Policy No.72170131080100200098) ... Appellant/2nd Respondent
vs.
1.Govindasamy ... Respondent/Petitioner
2.Malliga ...Respondent/1st Respondent
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act, 1988, to set aside the judgement and decree passed
by the Motor Accident Claims Tribunal, Sub Court, Srivilliputhur in
M.C.O.P.No.15 of 2011, dated 22nd day of August, 2017.
For Appellant : Mr.D.Sivaraman
For Respondents : No appearance
1/7
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C.M.A(MD).No.471 of 2019
JUDGMENT
The present appeal has been filed by the insurance company
challenging the award passed by the Motor Accident Claims Tribunal,
Srivilliputhur in M.C.O.P.No.15 of 2011 primarily on the ground of
liability.
2. According to the injured claimant, while he was walking on the
road on 29.03.2010 at about 06.00 p.m., the bus owned by the 1st
respondent and insured with the 2nd respondent was driven in a rash and
negligent manner and it dashed against him causing grievous injuries.
Hence, he prayed for a sum of Rs.2,79,500/- as compensation.
3. The owner of the mini bus had remained ex parte and the
insurance company has filed a counter affidavit taking a specific stand in
Paragraph No.7 to the effect that the driver of the mini bus, namely
Mareeswaran was not holding any valid and effective driving license at
the time of accident.
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C.M.A(MD).No.471 of 2019
4. The tribunal after considering the oral and documentary
evidence, had arrived at a finding that the accident has taken place only
due to the rash and negligent driving on the part of the driver of the 1 st
respondent. However, the tribunal found that the insurance company has
not established the fact that the driver of the mini bus was not having a
driving license at the relevant point of time. The tribunal proceeded to
award a sum of Rs.1,41,216/- as compensation. Since the tribunal found
that the insurance company has not established non-holding of the
driving license of the offending vehicle, it mulcted the liability upon the
insurance company. Challenging the said award, the present appeal has
been filed.
5. According to the learned counsel appearing for the appellant, in
Paragraph No.7 of the counter affidavit, they have taken a specific stand
that the driver of the offending vehicle was not having a driving license
at the relevant point of time. The insurance company had issued a notice
under Exhibit R.2 to the owner of the vehicle and the same has been
acknowledged under Exhibit R.3. However, the owner of the vehicle has
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C.M.A(MD).No.471 of 2019
not chosen to respond. The insurance company has also examined
officials from RTO office as R.W.2. Therefore, according to the learned
counsel for the appellant, they have taken all steps to establish that the
driver of the vehicle did not have a valid and effective driving license.
Therefore, the award of the tribunal should be modified to the effect that
an order of pay and recovery may be passed.
6. Though the owner of the vehicle is represented through a
counsel, there is no representation.
7. The vehicle belonging to the 1st respondent had caused the
accident in which the claimant was injured. Admittedly, the said
offending vehicle, namely the mini bus was insured with the appellant
insurance company. The insurance company has taken a specific stand in
the counter that the driver of the mini bus was not having any driving
license at the relevant point of time. Though the owner of the vehicle was
served, she has chosen not to appear before the tribunal or has let in any
evidence. The insurance company has issued a legal notice to the owner
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C.M.A(MD).No.471 of 2019
under Exhibit R.2 calling upon her to furnish the details of the driver
along with the driving license. Though the said legal notice has been
received by the owner under Exhibit R.3, there was no response. The
company has also examined RTO official as R.W.2. Therefore, whatever
that is possible, the insurance company has done in order to prove that
the driver of the mini bus was not having driving license at the relevant
point of time. Therefore, the finding of the tribunal that the insurance
company had not discharged their burden in proving the non-holding of
the driving license is not legally sustainable. Therefore, this Court is of
the considered opinion that the driver of the offending vehicle was not
having valid driving license at the relevant point of time and it is a clear
case of violation of policy conditions.
8. In view of the above said deliberations, the award of the tribunal
is modified to the effect that the appellant shall satisfy the award amount
and thereafter, recover the same from the 1st respondent in the claim
petition / 2nd respondent in the appeal by filing execution proceedings in
the same claim petition.
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C.M.A(MD).No.471 of 2019
9. With the said observations, the Civil Miscellaneous Appeal is
partly allowed to the extent as stated above. No costs.
26 .06.2023
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
gbg
To
1.The Motor Accident Claims Tribunal,
Sub Court,
Srivilliputhur.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.471 of 2019
R.VIJAYAKUMAR,J.
gbg
Order made in
C.M.A(MD)No.471 of 2019
26.06.2023
https://www.mhc.tn.gov.in/judis
