Madras High Court
The Branch Manager vs Sasikala on 23 March, 2023
C.M.A(MD)Nos.1107 & 1108 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.03.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)Nos.1107 & 1108 of 2017
C.M.A(MD)No.1107 of 2017:
1.The Branch Manager,
United India Insurance Co.Ltd.,
Micro Office,
Robin Complex 2nd Floor,
Nagercoil Road,
Thingal Santhai,
Kanyakumari District.
2.The Branch Manager,
United India Insurance Co.Ltd.,
PPK Building Main Road,
Marthandam,
Kanyakumari District. ... Appellants/Respondents 3&4
Vs.
1.Sasikala ... Respondent/Petitioner
2.Bright Jose ... Respondent/1st Respondent
3.Muralidharan ... Respondent/2nd Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, challenging the award and decree dated 03.08.2017
made in M.C.O.P.No.44 of 2014 on the file of Motor Accident Claims
Tribunal, Kuzhithurai in so far as the tribunal has not passed the decree
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C.M.A(MD)Nos.1107 & 1108 of 2017
in favour of the appellant/insurance company to recover the amount
ordered to be paid to the claimants by the insurance company.
C.M.A(MD)No.1108 of 2017:
1.The Branch Manager,
United India Insurance Co.Ltd.,
Micro Office,
Robin Complex 2nd Floor,
Nagercoil Road,
Thingal Santhai,
Kanyakumari District.
2.The Branch Manager,
United India Insurance Co.Ltd.,
No.3/33 B, PPK Building Main Road,
Marthandam,
Kanyakumari District. ... Appellants/Respondents 3&4
Vs.
1.Sobhanam ... Respondent/Petitioner
2.Bright Jose ... Respondent/1st Respondent
3.Muralidharan ... Respondent/2nd Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, challenging the award and decree dated 03.08.2017
made in M.C.O.P.No.35 of 2014 on the file of Motor Accident Claims
Tribunal, Kuzhithurai in so far as the tribunal has not passed the decree
in favour of the appellant/insurance company to recover the amount
ordered to be paid to the claimants by the insurance company.
For Appellants : Mr.A.Shajahan
(In both cases)
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C.M.A(MD)Nos.1107 & 1108 of 2017
For R1 : Mr.S.Sivakumar
(In both cases)
For R3 : Mr.B.Christopher
(In both cases)
COMMON JUDGEMENT
The present appeals have been filed by the insurance company
challenging an award in M.C.O.P.Nos.35 and 44 of 2014 on the file of
Motor Accident Claims Tribunal, Kuzhithurai.
2. The husband, namely Shobhanam along with his wife Sasikala
as a pillion rider were travelling in a motor bike. The vehicle belonging
to the 1st respondent came and dashed on the rear side of the said vehicle
and the husband, namely Shobhanam and the wife Sasikala got injured in
the said accident. The husband had filed M.C.O.P.No.35 of 2014 seeking
a compensation of Rs.4,00,000/- towards the injuries sustained by him.
The wife had filed M.C.O.P.No.44 of 2014 seeking a compensation of
Rs.6,00,000/- towards injuries sustained by her. The tribunal had
recorded independent evidence in both the claim petitions and awarded a
sum of Rs.1,07,196/- to the husband in M.C.O.P.No.35 of 2014 and Rs.
1,53,100/- to the wife in M.C.O.P.No.44 of 2014. Challenging both the
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C.M.A(MD)Nos.1107 & 1108 of 2017
awards, the present appeals have been filed by the insurance company.
3. According to the learned counsel appearing for the appellant,
the offending vehicle was owned by the 2nd respondent, namely
Muralidharan Nair and it was driven by the 1st respondent, namely Bright
Jose. The said vehicle was insured with the 3rd respondent/appellant in
the above appeal. According to the learned counsel appearing for the
appellant, the driver of the offending vehicle was not having valid and
effective driving license at the time of the accident and therefore, the
tribunal ought not to have fixed the liability upon the insurance company
without granting liberty to the company to satisfy the award and
thereafter, recover the amount from the owner of the vehicle.
4. The learned counsel for the appellant pointed out that though
the driver and the owner of the vehicle were served, they have remained
ex parte and they have not even filed a counter. No attempt was made on
behalf of them to place the driving license of the 1st respondent before
the Court. The appellant company had called for a document from the
Regional Transport Office, Marthandam, dated 10.07.2017 and it is
marked as Exhibit R.2. As per the said exhibit, the 1st respondent was not
having any driving license from the said Regional Transport Office. The
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C.M.A(MD)Nos.1107 & 1108 of 2017
said company has also examined one Junior Assistant from the said
Regional Transport Office as R.W.2 to prove that there was no driving
license in the name of the 1st respondent who drove the offending vehicle
at the time of the accident. Therefore, according to the learned counsel
appearing for the appellant, sufficient steps have been taken on the side
of the insurance company to prove that the 1st respondent did not possess
any driving license at the time of accident. Therefore, he prayed that an
order of recovery may be granted to the appellant / insurance company.
5. Per contra, the learned counsel appearing for the owner of the
vehicle had contended that he had sold the vehicle on 17.10.2012 itself
and therefore, he is not liable to pay any compensation for the injuries
sustained by the husband and wife. Though he had remained ex parte
before the tribunal, he had produced a document to the effect that he had
entered into an agreement with the 1st respondent, namely Bright Jose
who is a financier, handing over the vehicle to him, so that he could sell
the vehicle to some third parties. Therefore, according to the learned
counsel appearing for the owner of the vehicle, the vehicle having been
sold to the 1st respondent prior to the date of the accident he is not liable
to pay any compensation and hence, the prayer of the insurance company
for pay and recovery may not be granted.
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C.M.A(MD)Nos.1107 & 1108 of 2017
6. I have carefully considered the submissions made on either side.
7. The appellant insurance company had taken a specific stand in
their counter that the 1st respondent who had driven the offending vehicle
did not have valid driving license at the time of the accident. The 1st
respondent who drove the offending vehicle and the 2nd respondent who
is the registered owner of the vehicle have remained ex parte before the
tribunal.
8. Though the document has not been marked and only a Xerox
copy is produced by way of typedset of papers, this Court has perused
the vehicle sale agreement produced by the 2nd respondent, who is the
owner of the vehicle on the date of the accident. A perusal of the said
document would clearly indicate that the vehicle has just been handed
over by Muralidharan Nair to Bright Jose who is a financier, so that he
can sell the same to a third party. Till a third party comes for purchasing
the property, the vehicle continues to remain in the name of
Muralidharan Nair himself. A perusal of Exhibit R.1 will clearly indicate
that even after the alleged vehicle sale agreement, dated 07.12.2012, the
insurance has been renewed on 26.10.2012 only in the name of
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C.M.A(MD)Nos.1107 & 1108 of 2017
Muralidharan Nair. The motor vehicle inspector’s report marked as
Exhibit P.2 will clearly indicate that no driving license was produced at
the time of inspection. Even during the appeal stage, no driving license
of this driver has been produced. Therefore, it is clear that the vehicle
continued to be owned by Muralidharan Nair. In view of several
judgments of the Hon’ble Supreme Court, the registered owner would
continue to be liable for any accident that has taken place unless the
registration is transferred in the name of the purchaser. In the present
case, the owner has just handed over to a financier, who is waiting to find
out a purchaser to alienate the same. Therefore, by no stretch of
imagination, the said Muralidharan Nair could be considered to have sold
the vehicle.
9. Admittedly, the vehicle has been driven by one Bright Jose who
did not possess any driving license. The insurance company has taken
sufficient steps to discharge their burden by examining the Junior
Assistant of Marthandam Regional Transport Office as R.W.2 and by
marking a letter from the said Regional Transport Office as Exhibit R.2
to prove that there was no driving license in the name of Bright Jose.
Therefore, the appellant insurance company have categorically proved
that the driver of the offending vehicle did not have any driving license
at the time of the accident.
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C.M.A(MD)Nos.1107 & 1108 of 2017
10. In view of the above said facts, there is a clear policy violation
and the insurance company has to satisfy the award and recover the same
from the owner of the vehicle, namely Muralidharan Nair.
11. In view of the above said deliberations, the award of the
tribunal with regard to quantum is hereby confirmed and the award of the
tribunal fixing liability on the appellant insurance company is hereby
modified to the effect that the appellant insurance company is directed to
satisfy the award and recover the same from the owner of the vehicle by
filing execution proceedings in the respective Motor Accident Claim
petitions.
12. With the above said modification, both the Civil Miscellaneous
Appeals stand allowed to the extent as stated above. No costs.
23.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
https://www.mhc.tn.gov.in/judis
C.M.A(MD)Nos.1107 & 1108 of 2017
To
1.The Motor Accident Claims Tribunal,
Kuzhithurai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)Nos.1107 & 1108 of 2017
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)Nos.1107 & 1108 of 2017
23.03.2023
https://www.mhc.tn.gov.in/judis
