Madras High Court

The New India Assurance Company Limited vs Velusamy ...1St on 4 January, 2024

                                                                             C.M.A.(MD)No.104 of 2013

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                      Dated: 04.01.2024
                                                          CORAM:
                                          THE HON'BLE MR.JUSTICE P. DHANABAL
                                                C.M.A.(MD)No.104 of 2013


                    The New India Assurance Company Limited
                    Represented by its Branch Manager
                    82, Dr.Thirumalai Plaza Upstairs
                    New Dharapuram Road
                    Palani Taluk
                    Dindigul District                   ... Appellant/2nd Respondent

                                                        Vs.


                    1.Velusamy                                   ...1st Respondent/Petitioner


                    2.Ramasamy                                  ....2nd Respondent/1st Respondent


                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the
                    Motor Vehicles Act, to set aside the award and decree dated 16.07.2012
                    made in MCOP.No.339 of 2011 on the file of the Motor Accident Claims
                    Tribunal (Additional District & Sessions Court), Dindigul.


                                      For Appellant     : Mr.B.Vijay Karthikeyan


                                      For R1            : Mr.C.K.M.Appaji




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https://www.mhc.tn.gov.in/judis
                                                                            C.M.A.(MD)No.104 of 2013

                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed as against the order

passed in M.C.O.P.No.339 of 2011 on the file of the Motor Accident

Claims Tribunal (Additional District & Sessions Court), Dindigul, dated

16.07.2012 wherein the first respondent herein had filed a claim petition

as against the appellant and the second respondent herein.

2. The Tribunal has awarded a sum of Rs.1,25,800/- towards

compensation @ 7.5% interest per annum from the date of filing of the

petition till the date of realization. As against the award passed by the

Tribunal, the present appeal has been preferred by the

appellant/Insurance company.

3. For the sake of convenience and brevity, the parties herein after

will be referred to as per their status/ranking in the Tribunal.

4. The brief facts of the petition averments are:

On 15.08.2010, the petitioner along with others being loadmen

travelled in a Van bearing Registration No.TN 57 Z 7272. On the way to

work, they went to death condolence at Palanigoundenputhur. While they

were proceeding near Kuttiya Goundenputhur Bus Stop, the driver of the

Van drove the vehicle in a rash and negligent manner and dashed against

the tree. Thereby, one Ramasamy sustained head injuries and

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died on the spot and other persons including the petitioner who travelled

as loadmen were also sustained injuries. Hence, the petitioner filed the

claim petition claiming a sum of Rs.7,00,000/- towards compensation.

5.The second respondent/Insurance Company had filed a

counter stating that the petition is not maintainable. The deceased and

other persons had travelled in the non-transport vehicle as gratuitous

passengers. The driver of the first respondent has no valid driving

licence. Therefore, the respondent/insurance company is no way liable to

pay compensation to the petitioner.

6.In order to prove the case of the petitioner, the petitioner was

examined as P.W.1 and marked exhibits Exs.P.1 to Ex.P.10 documents and

on the side of the respondents R.W.1 and R.W.2 were examined and

Exs.R.1 to Ex.R.5 were marked.

7.After evaluating the oral and documentary evidence adduced

on either side, the Tribunal has awarded a sum of Rs.1,25,800/- towards

compensation with interest at the rate of 7.5 % per annum. The Tribunal

further directed the second respondent/insurance company to pay the

award amount on the petitioner and thereafter, recover the same from

the first respondent along with interest at the rate of 7.5% per annum

from the date of petition till the date of realisation of the amount.

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8.As against the award passed by the Tribunal, the second

respondent/Insurance company has preferred this present Civil

Miscellaneous Appeal.

9.The learned counsel appearing for appellant/second

respondent would contend that the Tribunal had failed to note that the

driver of the vehicle was not having any licence to drive the vehicle.

Further, the petitioner along with others were travelled in the goods

vehicle as gratuitous passengers. Further, the driver of the first

respondent has no valid licence and thereby, the first respondent had

violated the policy condition of the insurance company. Hence, the

appellant/insurance company is no way liable to pay the claim amount. If

any amount is awarded by the Tribunal, the same has to be paid by the

first respondent since there is a violation of policy condition.

10.The learned counsel for the appellant/insurance company

had further contended that the Tribunal without considering the above

aspects, wrongly awarded pay and recovery, since there is a violation of

policy condition. Therefore, the present appeal is filed to set aside the

award passed in MCOP.No.339 of 2011.

11.The learned counsel appearing for the first

respondent/petitioner had contended that the petitioner along with

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others were travelled in the goods vehicle as loadmen and on the way to

their work, they went to condolence, at that time, the driver of the

vehicle had driven the Van in a rash and negligent manner and dashed

against the tree and caused accident. Thereby, one Ramasamy died on

the spot and the other co-passengers sustained injuries. Since the first

respondent's vehicle was insured with the appellant/insurance company,

the insurance company is liable to pay compensation and thereafter, the

insurance company can recover the same from the owner of the vehicle

ie. second respondent herein. The Tribunal after taking into consideration

of all the aspects, had correctly awarded pay and recover and therefore,

the present appeal is liable to be dismissed.

12.The learned counsel for the first respondent/petitioner has

also brought to the knowledge of this Court that in M.C.O.P.No.99 of

2013, which arises out of the same accident, the same insurance

company has paid the award amount by admitting their liability, but in

this appeal, they refused to pay the amount.

13.This Court after hearing both sides and upon perusing the

documents including the order of the Tribunal the point for determination

in this appeal is:

i)whether the appeal is liable to be allowed or not?

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14.In this case, there is no dispute with regard to the

negligence on the part of the driver of the first respondent and no contra

evidence adduced by the insurance company and the insurance company

has filed this appeal on the grounds of liability fastened upon the

insurance company, since the driver of the first respondent had no valid

driving licence, and also the petitioner and others were travelled in the

goods vehicle as gratuitous passengers. Therefore, the insurance

company is not liable to pay any amount to the claimant.

15.In this context, the learned counsel for the respondent had

relied upon a Full Bench Judgment of this High Court reported in

2009(1) TN MAC 1 (FB) (Branch Manager, United India

Insurance Co.Ltd., Vs. Nagammal and others) wherein paragraph

No.31(vii) has held as follows:

“31(vii).Where, however, the matter has already been decided by the trial Court before the decision in Baljit Kaur's case, it would be in the discretion of the Appellate Court, depending upon the facts and circumstances of the case, whether the doctrine of “ pay and recover” should be applied or as to whether the claimant would be left to recover the amount from the person liable ie., the driver or the owner, as the case may be.”

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16.On a careful perusal of the judgement, it is clear that it

would be in the discretion of the Appellate Court, depending upon the

facts and circumstances of the case, whether the doctrine of pay and

recover should be applied or as to whether the claimant could be left to

recover the amount from the person liable i.e., the driver or the owner, as

the case may be. In the case on hand also, the petitioner along with

others have travelled as loadmen and they went to condolence, at that

time, the accident was occurred. Though there is a violation of condition

of policy, as far as the claimant is concerned, he is third party to the

insurance company. Since the first respondent's vehicle insured with the

appellant/insurance company, the appellant can pay the amount to the

claimant and recover the same from the second respondent herein, the