BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/02/2011 Coram THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A (MD) No.122 of 2005 C.M.A (MD) Nos.123 of 2005 C.M.A (MD) No.124 of 2005 and C.M.P (MD) Nos.1036, 1038 and 1040 of 2005 The Divisional Manager, United India Insurance Company Limited, Jawans Bhavan, Sivakasi. .. Appellant in C.M.A.No.122/2005 Vs 1.Sundari 2.Selvi Amalamary 3.John Livington 4.Alochanaimary 5.Sri Murugan Paper Mills (P) Limited, 189/1B, P.A.P.Colony, Sivakasi. 6.Tamil Nadu State Transport Corporation, Rep. by its Managing Director, Madurai Division No.V, Madurai Road, Virudhunagar. .. Respondents in C.M.A.No.122/2005 The Branch Manager, United India Insurance Company Limited, Sivakasi. .. Appellant in C.M.A.Nos.123 & 124/2005 1.K.Balamurugan 2.Sri Murugan Paper Mills (P) Limited, 189/1B, P.A.P.Colony, Sivakasi. 3.Tamil Nadu State Transport Corporation, Rep. by its Managing Director, Madurai Division No.V, Virudhunagar. .. Respondents in C.M.A.No.123/2005 1.P.Pandi 2.Sri Murugan Paper Mills (P) Limited, 189/1B, P.A.P.Colony, Sivakasi. 3.Tamil Nadu State Transport Corporation, Rep. by its Managing Director, Madurai Division No.V, Madurai Road, Virudhunagar. .. Respondents in C.M.A.No.124/2005 Common Prayer Appeals filed under Section 173 of the Motor Vehicles Act against the fair and decreetal award made in M.C.O.P.Nos.190 of 2003, 191 of 2003 and 193 of 2003 respectively dated 31.03.2004 on the file of the Motor Accident Claims Tribunal (Additional District and Sessions Judge (Fast Track Court) Virudhunagar). !For Appellant ... Mr.J.S.Murali (in all C.M.A's) ^For RR 1 to 4 ... Mr.P.Santhosh Kumar (in C.M.A.No.122/05) For R - 6 ... Mr.M.Kasivishvanathan (in C.M.A.No.122/05) For R - 1 ... Mr.P.Santhosh Kumar (in C.M.A.No.123 & 124/05) For R - 3 ... Mr.M.Kasivishvanathan (in C.M.A.No.123 & 125/05) :JUDGMENT
Challenge is made in these memorandum of Civil Miscellaneous Appeals to
the award of Rs.2,90,800/-, 44,975/- and 68,230/- dated 31.03.2004 and made in
M.C.O.P.Nos.190, 191 and 193 of 2003 respectively on the file of the Motor
Accident Claims Tribunal (Additional District and Sessions Judge/Fast Track
Court), Virudhunagar.
2.The second respondent/United India Insurance Company Limited in the
claim petition has preferred these appeals before this Court.
3.Totally eight claim petitions viz., M.C.O.P.Nos.189, 190, 191, 192, 193,
194, 195 of 2003 and 45 of 2004 were emerged out of a Road Traffic Accident
alleged to have been taken place on 14.07.2002 at about 07.20 a.m., at
Virudhunagar to Sivakasi road involving two vehicles Viz., the Van bearing
Registration No.TN 67-D-3834 and the Transport Corporation Bus bearing
Registration No.TN 67-N-0047. These claim applications were clubbed together and
a common evidence was recorded in the claim petition in M.C.O.P.No.192 of 2003
and after the completion of trial, a common award was pronounced on 31.03.2004.
These three appeals Viz., C.M.A.Nos.122 to 124 of 2005 are directed against the
award passed in respect of the claim petitions in M.C.O.P.Nos.190, 191 and 193
of 2003.
4.The facts which are absolutely necessary for the disposal of the appeals
are re-capitulated as under:
That on 14.07.2002, at about 07.30 a.m., the Van bearing Registration
No.TN 67-D-3834 was proceeding towards Amathur from Thoothukudi after loading
the house-hold articles of one Gnanathiravium, who is the claimant in
M.C.O.P.No.192 of 2003. The said van was driven by one Antony Pichai, who is the
claimant in M.C.O.P.No.189/03. One Palthangam (claimant in M.C.O.P.No.194 of
2003), who is the wife of Gnanathiravium, their minor son Amalpushparaj
(claimant in M.C.O.P.No.195 of 2003), one Balamurugan and one Pandi, who are the
claimants in M.C.O.P.Nos.191 and 193 of 2003 respectively were also travelling
in the said van.
When the van was negotiating a curve near G.N.Patti Branch road, the
driver who was on the steering wheel had driven the van in a rash and negligent
manner and as a result of which the van went out of the control of the driver
and rammed against the Tamil Nadu State Transport Corporation Bus, which was
coming from the opposite direction. As a result of which, the cleaner of the van
one Mr.Durairaj had succumbed to injuries instantaneously on the spot and other
intimates of the van and one passenger of the bus had sustained injuries. Hence,
the legal heirs of the deceased/cleaner Durairaj and other injured persons had
filed their respective claim petitions before the Motor Accident Claims Tribunal
(Additional District and Sessions Judge/Fast Track Court), Virudhunagar.
5.The first respondent/Ms.Sri Murugan Paper Mills Private Limited,
Sivakasi, in all the claim petitions is the owner of the Van bearing
Registration No.TN 67-D-3834. The appellant/United India Insurance Company,
Sivakasi, who is the second respondent in the claim petition is the insurer of
the said van. Whereas, the third respondent/Tamil Nadu Transport Corporation in
the claim petition is the owner of the bus bearing Registration No.TN 67-N-0047.
All the three respondents in the claim petitions had contested the claims on
various grounds. When the parties to the claim petitions were put on trial, 12
witnesses were examined on behalf of the claimants. During the course of their
examination, as nearly as 40 documents were marked. On the other hand, one
Kandhasamy was examined on behalf of the respondents and during the course of
his examination Ex.R1 and R2 were marked.
6.On appraising the evidences both oral and documentary, the claims
Tribunal had proceeded to pass the awards in the following manner.
(i) M.C.O.P.No.189 of 2003 – Dismissed.
(ii) M.C.O.P.No.190 of 2003 – Rs.2,90,000/- towards the compensation for
the death of the deceased Durairaj.
(iii) M.C.O.P.No.191 of 2003 – Rs.44,975/- towards the compensation for
the injuries sustained by the claimant.
(iv) M.C.O.P.No.192 of 2003 – Rs.1,02,450/- towards the compensation for
the injuries sustained by the claimant.
(v) M.C.O.P.No.193 of 2003 – Rs.68,230/- towards the compensation for the
injuries sustained by the claimant.
(vi) M.C.O.P.No.194 of 2003 – Rs.1,18,000/- towards the compensation for
the injuries sustained by the claimant.
(vii) M.C.O.P.No.195 of 2003 – Rs.37,725/- towards the compensation for
the injuries sustained by the claimant.
(viii) M.C.O.P.No.45 of 2004 – Rs.20,500/- towards the compensation for
the injuries sustained by the claimant.
7.Excepting the claim petitions in M.C.O.P.Nos.194 and 195 of 2003, in
respect of all other claim petitions ‘Viz’ M.C.O.P.Nos.190, 191, 192, 193 of
2003 and 45 of 2004, the claims Tribunal had directed the respondents 1 and 2
being the owner and the insurer of the van bearing Registration No.TN 67-D-3834,
to pay the compensation to the respective claims. In so far as the claim
petitions in M.C.O.P.Nos.194 and 195 of 2003 are concerned, the claims Tribunal
had directed the first respondent being the owner of the van bearing
Registration No.TN 67-D-3834, to pay their respective compensation.
8.Being aggrieved by the order of the claims Tribunal, the second
respondent/United India Insurance Company Limited has preferred these appeals
only against the award passed in the claim petitions in M.C.O.P.Nos.190, 191 and
193 of 2003.
9.Heard both sides.
10.It is obvious to note here that the claims Tribunal had found that the
driver of the van bearing Registration No.TN 67-D-3834, alone was responsible
for the accident and hence, the claim petition in M.C.O.P.No.189 of 2003, filed
by the driver of the van was dismissed.
11.Insofar as the appeals in C.M.A.Nos.122 to 124 of 2005 are concerned,
the claims Tribunal had found that the deceased in M.C.O.P.No.190 of 2003 was
working under the first respondent as a Cleaner. In respect of other appeals the
claimants in M.C.O.P.Nos.191 and 193 of 2003, the Tribunal had found them as
load-men and as such the first and second respondents being the owner and the
insurer of the van were found jointly and severally liable to pay compensation
to the above said claimants. Disputing the liability, the Insurance Company has
approached this Court by way of these appeals.
12.On a cursory perusal of the counter affidavit filed by the
appellant/Insurance Company being the second respondent in all the claim
petitions, it is apparent that it had contended that the driver of the van
bearing Registration No.TN 67-D-3834 was not having valid and effective driving
licence to drive the particular clause of vehicle at the relevant period. But
this contention was not considered by the Tribunal. It is obvious to note here
that the accident was taken place on 14.07.2002.
13.The learned counsel for the appellant has placed his arguments on the
following two grounds:-
(i) The driver of the van was not having valid and effective driving
licence to drive the said vehicle at the time of the accident. The deceased in
M.C.O.P.No.190 of 2003, Durairaj was an employee of the first respondent. He was
travelling in the said van under such capacity and since the accident was taken
place during the course of his employment, if at all any compensation is to be
awarded that might be directed against the owner of the vehicle under the
Workman’s Compensation Act and not under the Motor Vehicles Act.
(ii)In respect of other two claims Viz., M.C.O.P.Nos.191 and 193 of 2003,
the injured are also the employees of the first respondent and they are working
as Fitter in the first respondent’s Ms.Sri Murugan Paper Mills Private Limited
and that they were travelling in the offending vehicle as gratuitous passengers
and not as a load-men. Therefore, the Insurance Company is not liable to pay
compensation for these two claimants.
14.The learned counsel appearing for the appellant has also submitted that
the licence issued to the driver of the van by the issuing authority was valid
upto 15.06.2002 and thereafter, the licence was not renewed. Subsequently, the
licence was renewed only on 18.07.2002. In the intervening period i.e., from
16.06.2002 to 17.07.2002,the driver was not having any valid and effective
licence to drive the vehicle. The learned counsel for the appellant has also
maintained that since the occurrence was taken place on 14.07.2002, the driver
was not having an effective and valid driving licence to drive the particular
description of the vehicle and therefore, the Insurance Company could not be
made liable to pay compensation to the claimants.
15.The contention in this regard raised before the Tribunal during the
time of trial was negatived by the Tribunal placing reliance upon the decision
reported in 2002 ACJ 1187. In this connection the learned counsel for the
appellant has submitted that the licence which was expired as on 15.06.2002 was
renewed only on 18.07.2002. Since the driver was not having valid and effective
licence on 14.07.2002, on which date the occurrence was taken place, the owner
of the vehicle alone ought to have been made liable to pay compensation and not
the Insurance Company. In support of his argument, he has placed reliance upon
the decisions viz.,
1) National Insurance Company Limited Vs. Vidhyadhar Mahariwala and others
reported in 2008 (2) TNMAC 369 (SC).
2) Ram Babu Tiwari Vs. United India Insurance Company Limited and others
reported in 2008 (2) TN MAC 347 (SC).
3) National Insurance Company Limited Vs. Kaushalya Devi and others
reported in 2008 (2) TNMAC 497 (SC).
16.In National Insurance Company Limited Vs. Vidhyadhar Mahariwala and
others reported in 2008 (2) TNMAC 369 (SC), the accident was taken place on
11.06.2004, the driver’s licence was initially valid for the period from
15.12.1997 to 14.12.2000 and thereafter from 29.12.2002 to 14.12.2003.
Thereafter, it was again renewed from 16.05.2002 to 15.05.2008. The
appellant/Insurance Company filed its objections before the Motor Accident
Claims Tribunal taking the stand that since the driving licence was not valid on
the date of accident it had no liability. The Motor Accident Claims Tribunal had
turned down the plea. According to the Tribunal though on the date of accident
the driving licence was not valid, since the driver’s licence was renewed on
16.05.2005 for a further period of three years it cannot be said that during the
intervening period the driver was incompetent or disqualified to drive the
truck. With reference to Section 114 of the Indian Evidence Act, 1872 (in short
the ‘Evidence Act’) it was also held that at the time of accident the driver was
competent to drive the vehicle.
17.In appeal against the impugned judgment the High Court has referred to
three judgments of the Apex Court in National Insurance Company Limited Vs.
Swaran Singh and Ors., 2004 (1) TN MAC 104 (SC) : 2004 (3) SCC 297; National
Insurance Company Limited Vs. Kusum Rai and Others 2006 (1) TN MAC 9 (SC) : 2006
(4) SCC 250 and Oriental Insurance Company Limited Vs. Nanjappan and others 2004
(1) TN MAC 211 (SC) : 2004 (13) SCC 224 and came to hold that the Insurance
Company, the insurer was liable to indemnify the award. It was also held that
merely there was a gap in the renewal of driving licence that cannot be a ground
for exoneration.”
18.Challenging the decision of the High Court, fastening the liability the
National Insurance Company Limited preferred the above cited appeal before the
Honourable Supreme Court. While penning down the judgment on behalf of the
Division Bench His Lordship Honourable Mr.Justice Arijit Pasayat, after
considering the decisions made in Swaran Singh’s case and in Kusum Rai’s case
has held after making reference to the decision in Ishwar Chandra and others Vs.
Oriental Insurance Company Limited and others reported in 2007 (1) TN MAC 343
(SC) : 2007 (10) SCC 650, that in Ishwar Chandra’s case, the three decisions
referred to by the High Court (National Insurance Company Limited Vs. Swaran
Singh and Others, 2004 (1) TN MAC 104 (SC) : 2004 (3) SCC 297; National
Insurance Company Limited Vs. Kusum Rai and Others 2006 (1) TN MAC 9 (SC) : 2006
(4) SCC 250 and Oriental Insurance Company Limited Vs. Nanjappan and others 2004
(1) TN MAC 211 (SC) : 2004 (13) SCC 224) were considered and it was held that
the Insurance Company would have no liability in the case of this nature. His
Lordship has also held that they were in agreement with the view.
19. In Ram Babu Tiwari Vs. United India Insurance Company Limited and
others reported in 2008 (2) TN MAC 347 (SC), the driver Ram Prakash was having
valid licence only for the period 11.02.1990 and 10.02.1993 and again from
07.02.1996 to 07.02.18999. The driver Ram Prakash did not hold any licence
during the period 11.02.1993 to 06.02.1996. Hence, it is obvious that the
driving licence which was expired on 11.02.1993 not renewed till 06.02.1996. The
accident was taken place on 27.01.1996. Particularly on the date of the
accident, the driver was not having valid driving licence. In this connection,
His Lordship Honourable Mr.Justice S.B.Sinha has spoken on behalf of a Division
Bench that:-
“19.The Principle laid down in Kusum Rai (supra) has been reiterated in
Ishwar Chandra and others Vs. Oriental Insurance Company Limited and others 2007
(1) TN MAC 343 (SC) : 2007 (10) SCC 650, referring to Sub-Section of Section 15
of the Act, this Court stated the law thus:
“9. From a bare perusal of the said provision, it would appear that the
licence is renewed in terms of the said Act and the rules framed thereunder. The
Provision appended to Section 15(1) of the Act in no uncertain terms states that
whereas the original licence granted despite expiry remains valid for a period
of 30 days from the date of expiry, if any application for renewal thereof is
filed, thereafter, the same would be renewed from the date of its renewal. The
accident taken place on 28.04.1995. As on the said date, the renewal application
had not been filed, the driver did not have a valid licence on the date when the
vehicle met with an accident.”
Under this circumstance, it was held that the defence on the part of the insurer
that the vehicle involved in the accident was not driven by a driver having a
valid driving licence is a valid one and thus the insurer is not liable to pay
the compensation.
20.In National Insurance Company Limited Vs. Kaushalya Devi and others
reported in 2008 (2) TNMAC 497 (SC), the driver was holding licence to drive
light transport vehicle. Endorsement permitting the driver to drive heavy goods
vehicles found to be ante-dated, not existing on date of the accident. The owner
of the vehicle could not have checked or verified licence for driving heavy
goods vehicle. The owner had also not stepped into witness box to say anything
in this regard. Hence, the High Court found that the insurer not liable to pay
compensation. In these circumstances, the Apex Court has also held that in view
of the finding arrived at by the High Court, it must be held that the owner
alone was liable to pay compensation for causing death of her son by rash and
negligent driving on the part of the driver of the truck.
21.In the present case on hand, the driving licence of the driver of the
vehicle was expired on 15.06.2002 and renewed on 18.07.2002. But the accident
was taken place on 14.07.2002. As on 14.07.2002, admittedly, the driver was not
holding valid driving licence to drive the particular clause of vehicle.
Pertaining to this point, the learned counsel for the owner of the vehicle has
made reference to Section 14 of the Motor Vehicles Act, 1988. As contemplated
under Section 14 of the Motor Vehicles Act, 1988 every driving licence shall,
notwithstanding its expiry under this Sub-section, continue to be effective for
a period of thirty days from such expiry. Hence, it is thus made clear that
though the accident was taken place on 14.07.2002, since the driving licence was
statutorily valid for a period of thirty days from such expiry ie., from
15.06.2002, it cannot be heard to say that the driver was not having valid and
effective driving licence to drive the class of vehicle at the material time.
22.Secondly, the learned counsel for the appellant has submitted that the
claimants in M.C.O.P.Nos.191 and 193 of 2003 were working as fitter in Sri
Murugan Paper Mills Private Limited, who is the owner of the Van. According to
the claimants, they were travelling as loadmen. On the contrary, it is the
contention of the appellant/Insurance Company that they were travelling as
gratuitous passenger and not as loadmen.
23.In order to subordinate his case, the learned counsel for the appellant
has taken this Court through the testimonies of P.W.3 and R.W.1. P.W.3, Sundari
is the wife of the deceased Durairaj (M.C.O.P.No.190 of 2003), she would state
in her evidence that her husband Durairaj was working as loadmen in the Murugan
Paper Mills Private Limited. R.W.1, who is the Divisional Manager of the
appellant/Insurance Company has stated in his evidence that the Van bearing
Registration No.TN-67-D-3834 was registered with their Insurance Company at the
relevant period.
24.According to the Insurance policy, the Insurance Company would be made
liable for the damage which may be caused to the vehicle as well as for the
injury or death which may be caused to the cleaner, loadman and the owner of the
goods. He has also stated that the policy would be covered for the owner of the
goods. He would further submit that in accordance with their investigation the
claimants in M.C.O.P.Nos.191 and 193 of 2003 Viz., Pandi and Balamurugan were
working in the Murugan Paper Mills Private Limited, who is the owner of the Van.
He has also made it clear that the said claimants were not travelling in the Van
as a loadmen. His chief examination had withstood the test of cross-examination.
25.On careful scrutinization of the available materials on record, it is
obvious that the claimants have not produced any satisfactory evidence to
support their contention. Under this circumstance, the finding of the claims
Tribunal that the claimants in M.C.O.P.Nos.191 and 193 of 2003 were travelling
as loadmen is not in consonance with the evidences and hence it is liable to be
set aside.
26.In support of his argument, the learned counsel for the appellant has
also placed reliance upon the decisions in National Insurance Company Limited
Vs. Bhukya Tara and others reported in 2008 (2) TN MAc 342 (SC). In this case,
the deceased was travelling in a goods vehicle, it was not disputed. Under such
circumstances, it was held placing reliance upon the decisions reported in New
India Assurance Company Limited Vs. Asha Rani and others reported in 2004 (2) TN
MAC 387 (SC) : 2003 (2) SCC 223, that the Insurance company is not liable to pay
compensation to the claimants.
27.In National Insurance Company Limited Vs. Rattani and others reported
in (2009) 2 SCC 75, a Division Bench of our Apex Court has held that in the
facts and circumstances of the case, the victims of the accident were travelling
in the truck as gratuitous passengers. Therefore, the appellant herein (National
Insurance Company Limited) was not liable to pay the amount of compensation to
the claimants.
28.On coming to the instant case on hand, the injured persons in
M.C.O.P.Nos.191 and 193 of 2005 were travelling in the offending Van belonging
to Sri Murugan Paper Mills Private Limited. This has not been disputed. But the
only question is whether they were travelling in the capacity of the employee of
Sri Murugan Paper Mills Private Limited or under the capacity of loadmen. When
there is no adequate evidence on the part of the claimants, the inference is
that they were travelling only in the capacity of gratuitous passenger and not
in the capacity of loadmen.
29.Hence, having regard to the decisions cited above, this Court is of the
considered view that the deceased and the injured persons in M.C.O.P.Nos.190,
191 and 193 of 2005 were travelling as gratuitous passengers and hence the
Insurance Company is not all liable to pay compensation to the claimants.
30.In the result, the appeals in C.M.A.Nos.122 to 124 are allowed. The
award of the Tribunal dated 31.03.2004, in respect of the claim petitions in
M.C.O.P.Nos.190, 191 and 193 of 2003 alone are modified as detailed below:
The appellant/Insurance Company is not liable to pay compensation to the
claimants. The owner of the Van i.e., Sri Murugan Paper Mills Private Limited
alone is liable to pay compensation to the claimants. It is open to the
claimants to claim the amount against the owner of the Van Viz., Sri Murugan
Paper Mills Private Limited.
31.It is brought to the notice of this Court that the appellant/Insurance
Company had already deposited a sum of Rs.25,000/- on 16.12.2004. Besides this,
the appellant/Insurance Company has also deposited a sum of Rs.3,35,431/-
(Rupees Three Lakhs thirty-five thousand, four hundred and thirty one only),
Rs.30,379/- (Rupees Thirty thousand, three hundred and seventy nine only) and
Rs.59,978/- (Rupees fifty nine thousand, nine hundred and seventy eight only)
respectively towards the balance to satisfy the award and made in
M.C.O.P.Nos.190, 191 and 193 of 2003 by way of cheques bearing Nos.363664,
363663 and 363662 dated 22.02.2004 drawn at Indian Overseas Bank, Virudhunagar
Branch deposited to the credit of the claim petition in M.C.O.P.Nos.190, 191 and
193 of 2003. Since the appellant/Insurance Company is found not liable to pay
any compensation, the entire amount which has been deposited to the credit of
the claim petitions in M.C.O.P.Nos.190 of 2003, 191 of 2003 and 193 of 2003 on
the file of the Motor Accident Claims Tribunal (Additional District and Sessions
Judge (Fast Track Court) Virudhunagar) shall have to be refunded to the
appellant/Insurance Company. Consequently, the connected miscellaneous petitions
are also closed. No order as to costs.
ps
To
The Motor Accident Claims Tribunal,
Additional District and Sessions Judge,
Fast Track Court,
Virudhunagar.