Madras High Court
Shriram General Insurance Co. Ltd vs Babu on 9 January, 2024
CMA.No.1719 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2024
CORAM: THE HON'BLE MR.JUSTICE K.RAJASEKAR
CMA.No.1719 of 2021
& CMP.No.9103 of 2021
Shriram General Insurance Co. Ltd.
Seevaram, Perungudi,
Chennai. ... Appellant
-Vs-
1.Babu
2.Vijayalakshmi ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the decree and judgment dated 11th day
of December, 2020 made in M.C.O.P.No.85 of 2018, on the file of Motor
Accident Claims Tribunal (Special Sub Court No.1), Villupuram.
For Appellant : Mr.S.Dhakshnamoorthy
For R1 : M/s.D.Raghu
For R2 : No apperance
JUDGMENT
The appeal has been filed by the appellant/insurance company
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challenging the direction to indemnify the first respondent, owner of the
vehicle as per the decree and Judgement passed in MCOP.No.85 of 2018
dated 11.12.2020 on the file of the Motor Accident Claims Tribunal
(Special Sub Court No.1), Villupuram.
2.Facts leading to the filing of this appeal is as follows; the
claimant namely Babu was working under the first respondent, owner of
the JCB earth mover as a cleaner. On 19.03.2017, at about 2.30 p.m. the
operator of the JCB earth mover was doing digging work in the
Panchayat well at Kadayam Village. While digging the earth, the
claimant was also in the vehicle assisting the operator and suddenly the
vehicle lost its balance and fell into the well, which resulted in causing
injuries to the claimant herein. For the injuries sustained by the claimant
in the said accident, he has come forward with the claim petition seeking
compensation of Rs.30,00,000/-.
3.The first respondent, owner of the earth mover has not contested
the claim petition before the Tribunal. The second respondent/insurance
company contested the claim and disputed the engagement of the
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claimant as a cleaner. It was also contended that the operator of the JCB
did not possess a valid license and hence, there is violation of policy
condition and the insurance company is not liable to pay compensation.
4.Based on the evidence placed on record, the Tribunal has held
that the JCB operator has negligently operated the vehicle, which
resulted in the accident. The claimant was engaged as a cleaner and
hence, he is covered as per the insurance policy for getting
compensation. The Tribunal also quantified the compensation and
awarded Rs.4,43,000/- as compensation along with interest at the rate of
7.5% from the date of petition till the date of realization. Aggrieved by
the direction to indemnify the first respondent, the insurance company
filed this appeal.
5.The learned counsel for the appellant/insurance company
submitted that it is the admitted case of the claimant that he was engaged
to assist the operator of the JCB only on the date of occurrence. He was
not a cleaner as claimed by him. He also relied on the recitals in the First
Information Report, and evidence on RW1 to show that the driver of the
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first respondent was not authorized to drive the JCB and hence, there is
also a violation of the policy condition and prays to set aside the award
of the Tribunal or to absolve them from indemnifying the first
respondent.
6.Per contra, the learned counsel for the claimant submits that it is
the case of the claimant that he was a cleaner working under the first
respondent/owner of the vehicle to assist the JCB driver. This aspect has
been accepted by the Tribunal and the compensation has been awarded.
Hence, there is no infirmity in the award and prays to confirm the same.
7.This Court considered the materials placed by both sides and
perused the records.
8.The claimant examined himself as PW1 and stated that he was a
cleaner, working under the first respondent herein. He used to assist the
operator of the JCB at the time of earth moving work. On the date of
occurrence, also he was assisting the JCB operator by sitting on the JCB
earth mover. He further states that he was working under him for nearly
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one year.
9.This evidence has been impeached by the appellant insurance
company by relying on the recitals in Ext.P1 - FIR. In which, the wife of
the claimant has stated that on 19.03.2017 at about 2.30 p.m., the
Panchayat had engaged a JCB operator for leveling the sand around the
well of the Panchayat. While doing so, her husband Babu was also
assisting the JCB operator, that during that process, the JCB operator lost
control of the machine and the earth mover fell down in the well, which
resulted in causing the injuries.
10.The above recitals shows that her husband was engaged for
attending this particular work and he was not working as a cleaner with
the first respondent. Except this recital in Ext.P1 - FIR no other evidence
has been placed on record to show that the claimant was not a cleaner
engaged by the first respondent. Further recitals in the FIR alone is not
substantive piece of evidence and recitals therein requires to be proved
by corroborative materials and also by examining the person who lodged
the First Information to the police. This Court in New India Assurance
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Co. Ltd., Coimbatore vs. Manimaran and another [2008(2) TNMAC
137] and The New India Assurance Company Limited vs. G.Vijay
Kandiban and others [IV (2006) ACC 96] has held that merely based on
F.I.R, negligence cannot be fastened, since F.I.R in accident cases is
often lodged in a haste manner and the same cannot be substituted for
evidence and cannot be raised to the pedestal higher than that of a
statement of oath.
11.In the absence of any other evidence to prove that he is not a
cleaner, the evidence of PW1 has to be accepted, and admittedly no
evidence is placed on record to support the case of the Insurance
Company as there is no corroborative evidence placed on record to
disprove the evidence of injured claimant. This Court finds no infirmity
in the finding of the Tribunal that the injured was a cleaner engaged by
the first respondent to to assist the driver. Admittedly the cleaner is
covered by the insurance policy and he is entitled for getting
compensation for the injuries sustained by him.
12.As far as the violation of the policy conditions that the operator
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of the JCB was not having a valid driving license, the Tribunal has
accepted the case of the insurance company that the driver of JCB was
not holding valid driving license to operate JCB and by relying on the
Judgment of the Apex Court in Mukund Devangan Vs. Oriental
Insurance Company Limited [2017(2) TN MAC 145(SC)], wherein the
Apex Court has held that if a person, who is having a valid driving
license to drive light motor vehicle is driving a transport vehicle, which
is having gross vehicle weight not exceeding 7,500 Kg, he is entitled to
drive the transport vehicle or omni bus.
13.Whereas, in this case, the JCB does not fall within the category
of transport vehicle or omni bus, which is having gross vehicle weight
not exceeding 7,500 Kgs. The JCB is a earth mover. As per the
registration certificate, the class of the vehicle has been classified as
excavator motor. Hence, this Court is of the view that any person having
license to drive LMV vehicle is not entitled to operate the earth mover
and the Judgment of the Apex Court in Mukund Devangan Vs. Oriental
Insurance Company Limited could not be made applicable to the
present case.
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14.In this case, since the injured is having insurance coverage and
the violation is only with regard to the invalid driving license of the
driver of the JCB, as observed by the Apex Court in National Insurance
Co.Ltd Vs. Swaran Singh & Ors.[2004(3) SCC 297], even though the
insurance company is not liable to pay compensation, principle of “pay
and recovery” is applicable to this case. Accordingly, the insurance
company is liable to pay the compensation as determined by the Tribunal
to the claimant and is entitled to recover the same from the owner of the
vehicle.
15.To conclude, this appeal is partly allowed. The
appellant/insurance company is directed to deposit the entire
compensation amount as determined by the Tribunal with interest at
7.5%, less any amount already deposited, to the credit of MCOP.No.85
of 2018, within a period of six (6) weeks from the date of receipt of a
copy of this order and recover the same from the owner of the vehicle.
On such deposit, the claimant is permitted to withdraw the award
amount, along with interest and costs, less the amount if any, already
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withdrawn.
16.It is also brought to the notice of this Court on 25.06.2021 in
CMP/9103/2021, passed an order of interim stay with a condition to pay
50% of the award amount with interest and costs to the credit of
MCOP.No.85 of 2018, within a period of four weeks and on such
deposit, the Tribunal shall deposit the said amount to the credit of the
present CMA before the Indian Bank, High Court Branch in fixed
deposit. This interim order is only an interim arrangement. Since the final
order has been passed permitting the claimant to withdraw the entire
compensation amount, the Tribunal is directed to take steps to disburse
the entire amount to the claimant. No costs. Consequently, the connected
miscellaneous petition is closed.
09.01.2024
Tsg
To
1.The Motor Accident Claims Tribunal,
Special Sub Court No.1, Villupuram.
2.The Section Officer,
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V.R.Section, High Court, Madras.
K.RAJASEKAR, J.,
Tsg
https://www.mhc.tn.gov.in/judis
09.01.2024
https://www.mhc.tn.gov.in/judis
