Madras High Court
The United India Insurance ... vs C.Bose on 10 October, 2023
C.M.A(MD)No.242 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A(MD)No.242 of 2021
and
C.M.P.(MD) No.2041 of 2021
The United India Insurance Company Ltd.,
Through its Branch Manager,
Theni Town, Taluk,
Theni District. ... Appellant
.vs.
1.C.Bose
2.P.Balakrishnan ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree dated
15.07.2019 passed in MCOP.No.17 of 2013 on the file of the Motor
Accidents Claims Tribunal/Sub Court, Theni.
For Appellant :Mr.C.Karthik
For R1 :Mr.M.Ponniah
For R2 : No appearance
1/9
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C.M.A(MD)No.242 of 2021
JUDGMENT
This Civil Miscellaneous Appeal is filed against the award passed
by the Motor Accidents Claims Tribunal/Sub Court, Theni, in MCOP.No.
17 of 2013 dated 15.07.2019.
2.The appellant/second respondent/Insurance Company challenges
the award only on the ground that the Driver of the vehicle bearing
Reg.No.TN 67 7839, Mahindra Van, Radhakrishnan, had no driving
licence at the time of accident. Despite this fact was specifically pleaded
in the counter filed by the respondents and by examining R.W1 and
producing Ex.R1 to show that Radhakrishnan had no driving licence, the
Tribunal recorded a wrong finding and fixed the liability entirely on the
appellant/second respondent on the ground that the FIR and final report
do not indicate that the Driver, Radhakrishnan, had no driving licence.
Thus, instead of directly fixing the liability on the Insurance Company,
he prayed that the liability may be fixed on the owner of the vehicle with
a direction to pay the compensation award by the Insurance Company
and then, recover it from the owner.
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C.M.A(MD)No.242 of 2021
3.Despite printing the name of the second respondent, there is no
appearance for him.
4.The learned counsel for the first respondent submitted that as per
the evidence of R.W1, it was possible that the Driver, Radhakrishnan
could have got the driving licence from different addresses and from
different Regional Transport Office and therefore, it cannot be
conclusively held that the Driver, Radhakrishnan, had no driving licence.
5.Considered the rival submissions and perused the records.
6.It is seen from the records produced and the submissions of the
learned counsel appearing for the parties that on 17.01.2010 at about
08.00 pm., the claimant was riding his cycle near Karuppasamy temple
on the left side of the road. At that point of time, the Driver of the vehicle
bearing Reg.No.TN 67 7839, Radhakrishnan, had driven the Van from
sought to north in a rash and negligent manner and hit against the
claimant. As a result of which he sustained injuries and thus, he filed the
claim petition.
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C.M.A(MD)No.242 of 2021
7.From the submissions of the learned counsel appearing for the
parties, there is no dispute with regard to the manner in which the
accident had happened and that the accident happened because of a rash
and negligent driving of the Van bearing Reg.No.TN 67 7839 by the
Driver, Radhakrishnan.
8.The learned counsel appearing for the appellant brought to the
notice of this Court to the motor vehicle inspection report to show that
the Driver, Radhakrishnan had not produced the driving licence at the
time of inspection of the vehicle. He has also brought to the notice of this
Court to Ex.R1 to show that Radhakrishnan was not given the driving
licence by the Regional Transport Officer, Madurai (South). Thus, it is
prima facie established from the oral and documentary evidence
produced in this case that the Driver, Radhakrishnan, who had driven the
Van bearing Reg.No.TN 67 7839 in a rash and negligent manner, had no
driving licence at the time of accident. The only person, who can contest
the claim, is the owner. The owner of the vehicle was set ex parte before
the Tribunal and he did not appear before this Court also.
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C.M.A(MD)No.242 of 2021
9.In the said circumstances, this Court has no option except to
conclude that the Driver, Radhakrishnan, had no driving licence at the
time of causing the accident by driving the Van bearing Reg.No.TN 67
7839 in a rash and negligent manner. It is certainly violation of policy
conditions.
10.The Hon'ble Apex Court on several occasions in several
judgments held that in cases, where the Drivers of the vehicles, who
committed the accident, had no driving licence, the Insurance Company
is liable to pay the compensation amount to the victim and then entitled
to recover it from the owner.
11.In the judgment of this Court in Govindasamy and another Vs.
Ramamurthy and other reported in 2023 (1) TN MAC 739, it has been
held as follows:-
“7. Based on the oral and documentary evidence
adduced before the Trial Court, the Tribunal has come to
the conclusion that the accident has taken place due to the
rash and negligent driving of the driver of the 1 st
respondent's Maruti Suzuki Swift Desire car. Based on the
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C.M.A(MD)No.242 of 2021
Ex.R1 and R4, the Trial Court held that on the date of the
accident, the vehicle was insured with the 2 nd respondent /
Insurance Company. Based on Ex.R1, the Trial Court has
held that the driver of the Maruti Suzuki Desire car / the
offending vehicle does not possess a valid license on the
date of the accident. Accordingly, following the judicial
pronouncement of the Hon'ble Supreme Court, the Tribunal
has held that the Insurance Company has to pay the
compensation and thereafter to recover the same from the
owner of the vehicle. In the absence of any challenge to the
said finding, the said finding of the Trial Court is hereby
confirmed.”
12.In the Judgment of the Division Bench of this Court in Mallika
and others Vs. Periyasamy and another reported in 2023 (1) TN MAC
557 (DB), it has been held as under:-
“10. We have considered the rival submissions. We
are unable to accept the contention of the learned counsel
for the respondents as regards the license. A perusal of
Ex.P4 would show that the driver of the lorry had only
license to drive light motor vehicle and not the heavy
vehicle. Therefore, there is a breach of policy condition by
the insured. Technically the Insurance Company is not
liable to satisfy the award. However, in view of Section
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C.M.A(MD)No.242 of 2021
149(4), the Tribunal ought to have given liberty to the
Insurance Company to satisfy the award and recover the
amount from the owner of the vehicle. Denial of such
recovery to the Insurance Company in our considered
opinion is clearly erroneous. We therefore conclude that the
Insurance Company is liable to satisfy the award. It will
however have a right of recovery, from the owner of the
vehicle to the accident, of the liability that accrues to it
under the award.”
13.Following these judgments, the order that the
appellant/Insurance Company is liable to pay compensation on behalf of
the second respondent is set aside and modified that the appellant is
liable to pay compensation to the first respondent/claimant. However, the
appellant can recover it from the second respondent/owner.
14.In the result, this Civil Miscellaneous Appeal is allowed and the
appellant/Insurance Company is directed to pay the amount awarded by
the Tribunal at the first instance and then, recover the same from the
second respondent/owner of the vehicle. The appellant/Insurance
Company shall deposit the entire award amount with accrued interests
and costs, less the amount already deposited, if any, to the credit of
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C.M.A(MD)No.242 of 2021
MCOP.No.17/2013 on the file of the Motor Accident Claims
Tribunal/Sub Court, Theni within a period of eight weeks from the date
of receipt of a copy of this order. On making such deposit, the claimant is
permitted to withdraw the entire amount by filing a formal application
seeking permission. No costs. Consequently, connected Miscellaneous
Petition is closed.
Index :Yes/No 10.10.2023
Internet :Yes/No
NCC :Yes/No
Speaking :Yes/No
mm
To
The Subordinate Judge,
Theni
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.242 of 2021
G.CHANDRASEKHARAN,J.
mm
C.M.A(MD)No.242 of 2021
10.10.2023
https://www.mhc.tn.gov.in/judis
