BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.1479 of 1997 Ms.United India Insurance Co., Ltd., represented by its Divisional Manager, TVS Buildings III Floor, West Veli Street, Madurai. ... Appellant Vs 1.P.Pitchai 2.A.Kalavathy ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.948 of 1993, dated 16.11.1996, on the file of the Motor Accidents Claims Tribunal - IV Additional Sub Judge, Madurai. !For Appellant .... Mr.G.Prabhu Rajadurai ^For Respondents .... Mr.C.Godwin for R1 :JUDGMENT
This appeal has been preferred against the award of compensation passed in
M.C.O.P.No.948 of 1993, dated 16.11.1996, on the file of the Motor Accidents
Claims Tribunal – IV Additional Sub Judge, Madurai. The second respondent /
United India Insurance Company Limited, is the appellant herein.
The background facts of the case sans irrelevant details are as follows:
2. On 12.01.1993, at about 05.00 p.m., the claimant was carrying kerosine
barrel in his hand cart to the branch office of the Central Co-operative Bank,
Madurai. While he was nearing his destination, the scooter bearing Registration
No.TNV-9811, belonging to the first respondent, was driven by its rider in a
rash and negligent manner, dashed against the claimant, causing grievous
injuries. The accident had occurred only due to the rash and negligent driving
of the rider of the scooter bearing Registration No.TNV-9811. So, the claimant
had filed the claim petition claiming Rs.50,000/- towards compensation.
3. The first respondent remained ex-parte. The second respondent in his
counter has contended that the accident had only occurred due to the negligent
act of the claimant and in his additional counter, the second respondent has
contended that at the time of the accident, the rider of the scooter which
involved in the accident, had no valid driving licence and that in the criminal
case, the rider of the scooter was convicted on admonision.
4. Before the learned Tribunal, P.W.1 and P.W.2 were examined and Exs.P.1
to P.6 were marked on the side of the claimant. R.W.1 and R.W.2 were examined
and Exs.R.1 to R.3 were exhibited on the side of the respondents.
5. After due consideration of both oral and documentary evidence available
before the learned Tribunal, the learned Tribunal has come to a conclusion that
the accident had occurred only due the rash and negligent riding of the rider of
the scooter bearing Registration No.TNV-9811 and has awarded Rs.46,600/- towards
compensation to the claimant.
6. Aggrieved by the award of compensation, the second respondent, viz.,
the United India Insurance Company Limited has preferred this appeal.
7. Now, the point for determination in this appeal is whether the award of
compensation passed in M.C.O.P.No.948 of 1993, dated 16.11.1996, on the file of
the Motor Accidents Claims Tribunal – IV Additional Sub Judge, Madurai, is
liable to be set aside for the reasons stated in the Memorandum of appeal in
C.M.A.No.1479 of 1997?
The Point:
8. The learned Counsel for the appellant would contend that the learned
Tribunal has come to a conclusion that the second respondent has failed to prove
that at the time of the accident, the rider of the two wheeler bearing
Registration No.TNV-9811 which involved in the accident, had no valid driving
licence, basing on the dictum in 1988 ACJ 190 (P&H) and 1989 ACJ 419 (P&H). The
learned Counsel for the appellant would bring to the notice of this Court that
both the above said dictums in 1988 ACJ 190 (P&H) and 1989 ACJ 419 (P&H) which
were relied on by the learned Tribunal, were overruled by the Full Bench of the
Punjab and Hariyana High Court in United India Insurance Co. Ltd., Vs. Kamla
Rani and others reported in 1997 ACJ 1081, wherein it has been held that the
insurance company can only produce the certified copy of the insurance policy,
because the original will be only with the insured of the vehicle and held that
a certified copy of the insurance policy produced by the Insurance Company is
admissible in evidence without any formal proof of it. The learned Counsel for
the appellant would contend that he has produced the certified copy of the
policy available with the insurance company before the trial Court. But,
unfortunately, the trial Court has rejected the evidence i.e., the certified
copy of the insurance policy produced by the appellant herein.
9. The next contention of the learned Counsel for the appellant is that as
per the latest evolution of law in National Insurance Co., Ltd., Vs. Swaran
Singh and others reported in 2004 ACJ 1, it was held that in case of violation
of any terms and conditions of the policy, the insurer viz., the insurance
company need not pay the compensation to the claimant. But it can only pay the
compensation to the claimant and then to recover the same from the owner of the
vehicle, insured who had violated the terms and conditions of the policy. The
relevant observation in the above said dictum is as follows:
Where on adjudication of the claim under the Act the Tribunal arrives at a
conclusion that the insurer has satisfactorily proved its defence in accordance
with the provisions of section 149(2) read with sub-section (7), as interpreted
by this Court above, the Tribunal can direct that the insurer is liable to be
reimbursed by the insured for the compensation and other amounts which it has
been compelled to pay to the third party under the award of the Tribunal. Such
determination of the claim by the Tribunal will be enforceable and the money
found due to the insurer from the insured will be recoverable on a certificate
issued by the Tribunal to the Collector in the same manner under section 174 of
the Act as arrears of land revenue. The certificate will be issued for the
recovery as arrears of land revenue only if, as required by sub-section (3) of
section 168 of the Act the insured fails to deposit the amount awarded in favour
of the insurer within thirty days from the date of announcement of the award by
the Tribunal.
10. The above said dictum will squarely apply to the present facts of the
case. Herein also, the rider of the two wheeler bearing Registration No.TNV-
9811, had no valid driving licence to ride the two wheeler. The learned Counsel
would further contend that to show that the rider of the two wheeler had no
valid driving licence at the time of the accident, had examined R.W.2, an
official from the R.T.O’s Office to show that there was no valid driving licence
in favour of the rider of the two wheeler. He has also produced Ex.R.2,
judgment in the criminal case which was lodged against the rider of the two
wheeler for having failed to possess the valid driving licence to ride the
vehicle viz., two wheeler at the time of the accident. No doubt, the finding of
the criminal Court will not bind the learned Tribunal to fix the liability of
negligence of the rider of the two wheeler, but the learned Tribunal ought to
have taken into consideration the judgment in the criminal case, Ex.R.2, for
arriving at a conclusion that whether the rider had valid driving licence to
ride the two wheeler at the time of the accident, which involved in the
accident. So, the contentions of the learned Counsel for the appellant that the
pay and recovery policy enunciated in National Insurance Co., Ltd., Vs. Swaran
Singh and others reported in 2004 ACJ 1, will be applicable to the insurance
company / the appellant herein, who is liable to pay the award of compensation
first and then to recover the same from the owner of the vehicle bearing
Registration No.TNV-9811 which involved in the accident. With regard to the
quantum of compensation, there is no dispute.
11. Hence, I hold on the point that the award of compensation passed in
M.C.O.P.No.948 of 1993, dated 16.11.1996, on the file of the Motor Accidents
Claims Tribunal – IV Additional Sub Judge, Madurai, is liable to
be modified for the reasons stated in the Memorandum of appeal in C.M.A.No.1479
of 1997. The point is answered accordingly.
12. In the result, the appeal is allowed in part and the award of
compensation passed in M.C.O.P.No.948 of 1993, dated 16.11.1996, on the file of
the Motor Accidents Claims Tribunal – IV Additional Sub Judge, Madurai, is
modified to the effect that the award of compensation to be paid by the
appellant herein and then to recover the same by filing E.P from the owner of
the two wheeler bearing Registration No.TNV-9811 which involved in the accident
as per the dictum in National Insurance Co., Ltd., Vs. Swaran Singh and others
reported in 2004 ACJ 1. No costs.
rsb
To
The Motor Accidents Claims Tribunal –
IV Additional Sub Judge,
Madurai.