Madras High Court
United India Insurance Company Ltd vs Sobia Grace on 24 October, 2024
C.M.A.(MD) No.167 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.167 of 2010
and
M.P.(MD) No.2 of 2010
United India Insurance Company Ltd.,
Represented by its Branch Manager,
Marthandam, Nalloor Village,
Vilavancode Taluk,
Kanyakumari District. ... Appellant
Vs.
1.Sobia Grace
W/o.Tahanislas
2.Minor.Shybi
D/o.Late.Thanislas
3.Minor.Shyju
S/o.Late.Thanislas
(Minor R2 and R3 are represented
by their guardian, mother, R1)
4.Justin
S/o.Selvaraj
5.Masanam
S/o.Sridharan
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Page No. 1 of 9
C.M.A.(MD) No.167 of 2010
6.Chellaswamy
S/o.Siluvaimuthu ... Respondents
[R4 and R5 remained ex parte before the
Tribunal]
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and Decree dated 22.12.2008
made in M.C.O.P.No.6 of 2005 on the file of the Motor Accident Claims
Tribunal (Subordinate Court) at Kuzhithurai.
For Appellant : Mr.N.Murugesan
For R1 to R3 : Mr.T.Jeen Joseph
For R5 & R6 : No appearance
*****
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the Tribunal's finding on liability.
2. The first to third respondents filed a claim petition before the
Tribunal, stating that the deceased was employed under the sixth
respondent herein, and on 16.10.2003, at 03:00 hours, while the deceased
was travelling in a Tempo bearing registration No.TCZ 3778 insured with
the appellant, the driver drove the vehicle in a rash and negligent manner,
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as a result of which the deceased was thrown out of the vehicle and
sustained fatal injuries.
3. The driver and the owner of the vehicle, the fourth and fifth
respondents herein, remained ex parte before the Tribunal.
4. The appellant filed a counter stating that the accident did not take
place in the manner stated in the claim petition and that in any event, the
driver of the insured vehicle did not have a valid driving licence, and
therefore, they are not liable to pay any compensation.
5. The sixth respondent, who is the owner of the goods transported
in the insured vehicle, filed a counter stating that he hired the vehicle from
the fifth respondent, which was driven by the fourth respondent for
transporting goods, and that he engaged the deceased for unloading the
goods at the house of his customer, and during the travel, the accident
took place; and that the deceased was his agent, and therefore he is not
liable to pay any compensation.
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6. Before the Tribunal, the claimants examined P.W.1 and marked
Exs.A1 to A8, and the respondents therein, i.e., the appellant and the
fourth respondent herein, examined R.W.1 to R.W.3 and marked Exs.B1
and B2.
7. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place only due to the
negligence of the driver of the vehicle and directed the appellant to pay a
compensation of Rs.4,10,000/- to the claimants.
8. The learned counsel for the appellant submitted that the appellant
had examined R.W.1 and produced the driving licence of the driver, the
fourth respondent herein, to show that the driver had applied for licence
only on 25.03.2004 after the accident took place on 16.10.2003; however,
the Tribunal had erroneously held that the appellant failed to establish that
the driver did not have a valid driving licence at the time of the accident
and that in view of the violation of policy conditions, the Tribunal ought
to have granted liberty to the appellant to recover the compensation from
the owner of the vehicle, the fifth respondent herein.
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9. The learned counsel for the first to third respondents/claimants
submitted that the award of the Tribunal is just and reasonable, and
therefore, no interference is called for.
10. Though notice was served on the fifth and sixth respondents and
their names are printed in the cause list, none has entered appearance.
11. The only point for consideration in the instant appeal is whether
the appellant had established that there was a violation of policy
conditions by the insured, the fifth respondent herein, and the appellant
can be directed to pay and recover the compensation from the fifth
respondent.
12. The learned counsel for the appellant is unable to point out any
infirmity in the quantum of compensation. The appellant had examined
R.W.1, the Regional Transport Officer, who had produced Ex.P2, the
Driving Licence of the driver, to show that the driver of the insured
vehicle had applied for the licence only on 25.03.2004. However, the
Tribunal had assumed that the driver could have obtained the Learner's
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License Registration [LLR] even before that, and therefore, the insurer
had not violated the policy conditions.
13. This Court is of the view that the Tribunal's finding is
erroneous, as neither the driver nor the owner of the insured vehicle has
dislodged the evidence let in by the appellant through R.W.1 and by the
production of Ex.P2/license which was issued on 25.03.2004. There
cannot be a presumption in law that the driver could not have obtained an
LLR or that he would have had a valid LLR at the time of the accident.
Even before this Court, the driver and the owner of the insured vehicle
remained ex parte. Hence, this Court is of the view that the appellant had
established that there was a violation of policy conditions, as the driver
did not have a valid driving licence at the time of the accident, and
therefore, the appellant can be directed to satisfy the award at the first
instance and recover the same from the fifth respondent, the owner of the
insured vehicle, in the manner known to law.
14. The learned counsel for the appellant submitted that they have
deposited the entire compensation awarded by the Tribunal together with
interest and costs.
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15. The first respondent is permitted to withdraw her share along
with proportionate interest and costs, less the amount already withdrawn,
if any, by filing suitable application before the Tribunal.
16. As far as the second and third respondents are concerned, they
were minors at the time of filing of the claim petition in the year 2005.
Since they would have now attained majority, they are permitted to file
suitable application before the Tribunal to record their majority and
withdraw their shares along with proportionate interest and costs.
17. In the result, this Civil Miscellaneous Appeal is partly allowed.
No costs. Consequently, the connected Miscellaneous Petition is closed.
24.10.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The Subordinate Judge,
Motor Accident Claims Tribunal,
Kuzhithurai,
Kanyakumari District.
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2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
JEN
and
24.10.2024
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