Madras High Court
The New India Assurance Company Limited vs Prabhu on 8 January, 2024
C.M.A. No. 3673 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
Civil Miscellaneous Appeal No. 3673 of 2021
The New India Assurance Company Limited,
(Policy Issuing Office at Hasthampatti
No.118, Gandhi Road, North Branch)
Divisional Office,
Sethukrishna Trade Centre, Gugai,
Salem-6. ... Appellant / Petitioner
Vs.
1. Prabhu
2. Manickam ... Respondents / Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Award and Decree dated 01.02.2021 passed
in M.C.O.P. No.2131 of 2017 on the file of the Motor Accident Claims
Tribunal, Special Sub Court No.I, Salem.
For Appellant : Mr.C.Ramesh Babu
For R1 & R2 : No appearance
1/7
https://www.mhc.tn.gov.in/judis
C.M.A. No. 3673 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the liability fixed on them to pay the compensation
for the injuries sustained by the claimant herein, who is the insurer of the
appellant herein in the award passed in M.C.O.P.No.2131 of 2017, on the
file of the Motor Accidents Claims Tribunal, Special Sub Court,
Krishnagiri.
2. The parties are referred to hereunder according to their
litigative status and ranking before the Tribunal.
3. The case of the claimant in brief is that on 17.11.2017 at
about 10.00 p.m., the petitioner was riding his two-wheeler bearing
Registration No.TN 30 T 8078 while he reached near Radha Thottam on the
Mettu Udaiyarpalayam Road, a Tractor bearing Registration No.TN 77 J
4798 came in the opposite direction with rash and negligent manner and hit
the two-wheeler resulting which, the claimant sustained severe injuries.
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Immediately he was admitted into Salem Government Hospital for treatment
and thereafter he was shifted into Universal Hospital, Salem for better
treatment and after treatment he has come forward with the claim petition
under Section 166 of the Motor Vehicles Act, claiming compensation of
Rs.5,00,000/-.
3. The point raised for consideration in this appeal is that
whether the insurance company is liable to pay the compensation when the
driver of the Tractor, who is the tortfeasor is not having valid driving
licence. As held by the Apex Court in National Insurance Company Ltd.,
vs. Swaran Singh & Ors [2004 (3) SCC 297] when the driver of the
offending vehicle i.e., the tortfeasor is not having valid driving licence to
drive the vehicle and the injured is a third party, the course open to the
Tribunal at the time of awarding compensation is adopting the principles of
pay and recover.
4. In this case, admittedly, the injured in this case is a third
party while he was riding his two wheeler on the Mettu Udaiyarpalayam
Road Road, at the Yethapur, the driver of the first respondent Tractor came
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in the opposite direction in rash and negligent manner and hit on him, which
resulted in causing severe injuries.
5. The Tribunal after considering the evidences placed on
record has held that the driver of the Tractor is a tortfeasor. However, the
Tribunal has not considered the evidences placed on record on the side of
the Insurance Company that there is a violation of policy conditions i.e., the
driver was not having valid driving license at the time of accident. The
official of Regional Transport Officer was also examined as R.W.1 and he
has categorically given evidence that the tortfeasor herein was having only
learners licence and was not qualified to drive the Tractor independently.
6. After accepting the evidence of the Insurance Company
that the tortfeasor was not having valid driving licence, directing the
Insurance Company to indemnify the first respondent is not legal. In catena
of Judgments it has been held that if a person who has not having valid
driving licence is a tortfeasor, then the Insurance Company need not
indemnify the owner of the vehicle since it was both the statutory violation
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as well as the policy conditions.
7. However, as stated supra, it is settled that if the injured is
a third party, adoption of principle of pay and recover is to be followed.
Accordingly, the Civil Miscellaneous Appeal is allowed. The Insurance
company is directed to pay the compensation amount as awarded by the
Tribunal and recover the same from the first respondent, who is the owner
of the vehicle. In other aspects the award of the Tribunal shall stand
confirmed. There shall be no order as to costs in the present appeal.
08.01.2024
ssi
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The Special Sub Judge No.I,
Motor Accident Claims Tribunal,
Salem.
2. The Section Officer,
V.R.Section,
https://www.mhc.tn.gov.in/judis
High Court,
Chennai.
K. RAJASEKAR, J.
ssi
https://www.mhc.tn.gov.in/judis
08.01.2024
https://www.mhc.tn.gov.in/judis
