IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2009 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.(NPD)No.10 of 2004 1.Nagamani 2.Venkatesan ... Appellants Vs. 1.Singaravelu 2.National Insurance Company Limited, No.46, Moore Street, Chennai-1. (1st respondent was set exparte by the lower Court) ... Respondents Prayer: Appeal filed against the Judgment and Decree dated 20.01.2003 made in M.A.C.T.O.P.No.4647 of 1998 on the file of the Motor Accidents Claims Tribunal (IV Judge, Small Causes Court), Chennai. For Appellants : Mrs.S.Sarumathy For 1st respondent : NDW For 2nd respondent : Mr.P.S.Baskar JUDGMENT
The appellants/petitioners have filed this civil miscellaneous appeal as against the award dated 20.01.2003 passed in M.A.C.T.O.P.No.4647 of 1998 by the Motor Accidents Claims Tribunal, IV Judge, Court of Small Causes, Chennai in directing the first respondent to pay sum of Rs.92,000/- (Rupees Ninety two thousand only) (including the interim relief) to the appellants/petitioners along with interest at 9% per annum from the date of award till date of deposit into Court etc.
2.The short facts of the claim are as follows:
(i)On 05.05.2008 at about 16 hours while Udayakumar (deceased) crossing the Manjabakkam road towards Redhills direction at that time a lorry bearing Registration No.TN-01-A-5049 came from Redhills Market towards Manali, driven in a very rash and negligent fashion by its driver at a terrific speed endangering public safety and knocked down the deceased and as a result of the said accident, the deceased fell down and the wheels of the lorry ran over the deceased legs and later he expired at the hospital due to multiple injuries. The accident took place because of the rash and negligent driving of the driver of the lorry and the first respondent (owner of the offending lorry) and the second respondent/Insurance Company (insurer) are vicariously liable to pay the compensation with interest and costs from the date of filing of the petition to the claimants/parents.
(ii)The second respondent/Insurance Company in its counter took a denial that on 05.05.1998 at about 16 hours when the deceased was crossing the Manjabakkam road, a lorry bearing Registration No.TN-01-A-5049 proceeding from Redhills Market to Manali was driven in a rash and negligent manner and knocked down the appellants/petitioners’ son and ran over his legs resulting in fatal injuries.
(iii)The second respondent/Insurance Company also took a plea that the driver of the offending lorry was not in possession of a valid driving licence and that the first respondent’s driver was possessing a licence to drive Heavy Goods Vehicle alone and that he was not having the special endorsement in his favour, in his driving licence to drive the vehicles carrying Hazardous Goods. Moreover, the claim made under several captions in the claim petition were speculative and imaginary and the claim of Rs.1,00,000/- was highly excessive.
(iv)Inasmuch as the driver of the lorry bearing Registration No.TN-01-A-5049 was not having the valid driving licence at the time of accident, there was no privity of contract to pay the claim amount on behalf of the first respondent and hence on this score, the petition was liable to be dismissed against the Insurance Company.
(v)Before the Tribunal, the first respondent was set exparte.
(vi)Before the Tribunal, on behalf of the appellants/ claimants, witness P.W.1 (second claimant) was examined and Exs.A.1 to A.4 were marked. On the side of second respondent, witnesses R.W.1 and R.W.2 were examined and Exs.R.1 and R.2 were marked.
(vii)The Tribunal, on an appreciation of oral and documentary evidence available on record, has come to the conclusion that the appellants/claimants are entitled to receive a sum of RS.92,000/- (including the interim relief) from the first respondent/owner of the offending lorry together with interest at 9% per annum from the date of filing of the petition till date of payment and passed an award accordingly. Eight weeks time was granted for depositing the aforesaid amount before the Tribunal.
3.Dissatisfied with the award passed by the Motor Accidents Claims Tribunal viz., VI Judge, Court of Small Causes Court, Chennai, the claimants as appellants have preferred this appeal before this Court.
4.According to the learned counsel for the appellants/ claimants, the award passed by the claims Tribunal is contrary to law, weight of evidence and probabilities of the case and further, the Tribunal has misdirected itself in awarding the compensation only against the first respondent (owner of the vehicle) and thereby exonerated the second respondent/Insurance Company from payment of compensation and moreover, the Tribunal has not appreciated the fact that there is no evidence placed on the side of second respondent/Insurance Company that the lorry TN-01-A-5049 is intended to carry Hazardous Goods and further, the Tribunal has committed an error and in not taking note of the fact that the violations of policy conditions will not affect the right of third party to recover compensation from the Insurance Company and therefore, prays for allowing the appeal by setting aside the award passed by the Tribunal and to pass an award for Rs.92,000/- against the respondents, to prevent an aberration of justice.
5.The learned counsel for the second respondent/ Insurance Company contends that the first respondent’s lorry driver at the time of accident was possessing only a licence to drive Heavy Goods Vehicle and that he was not possessing a special endorsement in his driving licence to drive vehicles carrying hazardous goods and further at the time of accident, the lorry was carrying hazardous goods and there was a breach of policy conditions and resultantly, the second respondent/Insurance Company could not be fastened with the liability to pay the compensation in the eye of law and moreover, the Tribunal came to the right conclusion in exonerating the second respondent/Insurance Company from its liability and the same need not be interfered with by this Court.
6.However, the learned counsel for the appellants/ petitioners submits that the second respondent/Insurance Company could not be allowed to avoid its liability on the basis of violation of policy conditions pertaining to the driving licence and in support of the said contention, relied on the decision of Hon’ble Supreme Court in National Insurance Company Limited V. Swaran Singh and others 2004 ACJ 1 at page 3 wherein it is inter alia observed that ‘insurer will not be allowed to avoid its liability merely on technical breach of conditions concerning driving licence.’
7.Further, on the side of appellants the decision of Hon’ble Supreme Court in New India Assurance Company V. Kamala and others 2001 ACJ at page 843 was relied on to the effect that ‘the Insurance Company can recover from the insured the amount so paid to the third parties if as per the policy conditions the insurer had no liability to pay such sum.’
8.At the time of accident on 05.05.1998, the offending lorry TN-01-A-5049 was driven by its driver V.Elayasamy. In this connection, it is useful to refer to the evidence of R.W.1 (Insurance Claims Investigator) wherein he has deposed that the offending vehicle was a Oil Tanker Lorry bearing Registration No.TN-01-A-5049 and that the said lorry driver possessing a licence of H.V.L. was not sufficient and that the lorry driver was not in possession of hazardous goods driving licence. R.W.2 (Junior Assistant of R.T.O. office) in his evidence has stated that the lorry driver Elayasamy’s licence number was DL 5007/DDL/89 and that the badge register alone was available and that the badge will be issued one year latter from the date of issuance of L.M.V. licence and that the badge No.11134 L.M.V. was only for transport vehicle and that badge No.11134 was not issued to Elayasamy and the same in their register was in Sundarajan’s name as per Ex.R.2 and that the Elayasamy was not having a licence to drive either a transport vehicle or an hazardous goods.
9.At this stage, it is borne in mind that the insurance is a covenant of good faith where both parties are covenanted to abide by the terms and conditions of a policy. An Insurance Company is a trustee of the public and keeper of public coffer. As such, the Tribunal is not to mulct the Insurance Company with a liability to which it is not liable in the eye of law. Generally speaking, the claimants cannot challenge the terms or validity of policy which is a contract between the parties concerned.
10.As a matter of fact, Section 149(2) of the 1988 Motor Vehicles Act enables the insurers to raise defence against the claim of the claimants. In terms of clause (c) of sub-section (2) of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. New India Assurance Company V. Asha Rani, 2003 MPHT 474 (SC): 2003 (1) GUJ CD 27 (NOSC).
11.This Court recalls the decision of Hon’ble Supreme Court in National Insurance Company Limited V. Swaran Singh and others AIR 2004 SC at page 1531 at special page 1534 wherein it is observed as follows:
“The owner of a motor vehicle in terms of S.5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of S.3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same ws allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand at all, e.g. a case where an accident takes place owing to a mechanical fault or vis-major.”
12.In National Insurance Corporation Limited V. Kanti Devi and others the Hon’ble Supreme Court in 2005 AIR SCW 3282 has observed that ‘an insurer has right to raise defence of validity of licence of driver of attending vehicle and it is required to prove that injured did not take adequate care and caution to verify the genuineness or otherwise of licence.’
13.This Court pertinently points out the decision of Hon’ble Supreme Court Ashok Gangadhar Maratha V. Oriental Insurance Company Limited 2000 ACJ 320 at page 321 wherein it is held as follows:
“4.Under Section 3 of Motor Vehicles Act, 1988 (for short, ‘the Act’), no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle. Section 3 is as under:
“3.Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do.
(2)The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.”
5.This section uses two expressions, namely, ‘motor vehicle’ and ‘effective driving licence’. ‘Effective’ would mean a valid licence both as regards the period and type of vehicle etc.”
14.In K.Venkatnarayanan V. Balaji and others 2002 (3) TAC 635 at page 638 and 639 (Madras) it is inter alia held that ‘… Therefore, where the owner does not choose to adduce evidence that he was not aware of the fact that the person to whom the vehicle was entrusted did not have a valid licence, the burden is on the owner if he wants to avoid any liability. Otherwise, if the claimants want to fasten liability on the Insurance Company, it is for him to prove the said fact.’
15.It is significant to make a mention that in Ex.R.1-Investigation Report the driving licence details of the lorry driver Elayasamy is mentioned as follows: DL.No.5007/ PDL/89 authorised to drive L.M.V., Heavy goods vehicle, Transport vehicle also Badge No.11134 DLR.No.23/95 valid from 28.6.1995 to 27.06.1998.ALA.Chennai – East. Further, in Ex.R.1 under the caption ‘Insurance Details’ it is mentioned as:500200/97/6301853 valid from 25.01.1998 to 24.1.1999 and in F.C. details it is described as valid from 25.2.1998 to 24.02.1999. The Investigator R.W.1 in his Ex.R.1-report as a brief history has mentioned that at the time of accident the driver was allowed to drive only heavy goods vehicle and as per permit (vehicle) the vehicle was allowed to carry oil and petroleum products only and further the driver was not permitted to drive Hazardous Goods Vehicle. In Ex.R.1, Investigator’s Report the xerox copy of the comprehensive policy in favour of the first respondent reads as follows:
‘Any person including the insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such licence; provided also that a person holding an effective learner’s licence may also drive the vehicle when not used for transport of goods at the time of the accident and such a person satisfies the requirement of rule No.3 of the Central Motor Vehicle Rule 1989.’
16.As far as the present case is concerned, it is the categorical evidence of R.W.2 that the driver of the offending lorry was not possessing the licence to drive the transport vehicle or the hazardous vehicle and even the Ex.R.2-xerox copy of badge register refers to No.11134/81307 standing in the name T.G.Sundarajan, S/o.Gopal Mesthray, No.4, 7th Cross Street, Devi Karumari Nagar, Madras -42. Indeed, in Ex.R.1 Investigator’s Report the driver of the lorry was authorised to drive light motor vehicles and from 30.10.1991 was authorised to drive heavy goods vehicle also and the same was renewed from 28.06.1995. Suffice it to point out for this Court that the offending lorry driver Elayasamy was not in possession of a licence/endorsement to drive the hazardous goods vehicle and that he was only possessed of a licence to drive heavy goods vehicle with effect from 30.10.1991 and therefore, there was a violation of policy condition and as such, the Tribunal was quite correct in exonerating the second respondent/Insurance Company from its liability to pay and moreover, the appellants/petitioners have not proved that the driver Elayasamy had the valid licence in regard to the type of vehicle viz., hazardous vehicle involved in the accident and consequently, the appeal fails and the same is hereby dismissed.
17.In the result, the Civil Miscellaneous Appeal is dismissed without costs. Resultantly, the award passed by the Tribunal dated 20.01.2003 in M.A.C.T.O.P.No.4647 of 1998 is affirmed for the reasons assigned by this Court in this appeal.
sgl
To
The VI Judge, Court of Small Causes,
Motor Accidents Claims Tribunal,
Chennai