BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 15/10/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.No.1672 of 2002 The Branch Manager National Insurance Co. Ltd., Dindigul - 1. ... Appellant/ 3rd Respondent Vs. 1.M.Mansoor Ali 2.M.Mallika Begam ... Respondents/ Petitioners 3.Kalil Ahmed @ Kaleel 4.S.A.Rajamohammed ... Respondents/ Respondents1&2 PRAYER Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and decree dated 02.02.2002, passed in MACTOP No.238 of 1998 by the Motor Accident Claims Tribunal/ Sub Court, Palani. !For Appellant ... Mr.S.Ramachandran ^For Respondents... No appearance **** :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 02.02.2002, passed in MACTOP No.238 of 1998 by the Motor Accident
Claims Tribunal/ Sub Court, Palani.
2. Before the tribunal, the appellant is the 3rd respondent, respondents
1 and 2 are the claimants and respondents 3 and 4 are the respondents 1 and 2.
3. The case of the claimants in the petition briefly is as follows:
The petitioners are the parents of the deceased Mohammed Mushtafa @
Shajagan. On the fateful day, i.e. on 24.06.1998 at about 10.00 a.m., the
deceased Mohammed Mushtafa @ Shajagan was walking along with the second
petitioner on the main road at Anna Salai, near Kamarajar Mandram, Kodaikanal.
At that time, a Maruthi van bearing Registration No.TN-57-Z-2501, driven by its
driver Kalil Ahmed @ Kaleel, the 3rd respondent herein, in a rash and negligent
manner and dashed against the deceased and his mother and as a result of which,
both of them sustained injuries. The deceased Mohammed Mushtafa @ Shajagan and
his mother were taken to Venelan Hospital, Kodaikanal and there the Doctor found
that Mohammed Mushtafa @ Shajagan died. The said Maruthi van belongs to the 4th
respondent herein and insured with the appellant. The deceased is the only
child to his parents. So, the respondents 1 and 2, who are the parents of the
deceased, have filed a petition claiming a compensation of Rs.1,00,000/-.
4. The 3rd respondent insurance company filed the counter, wherein it was
contended that the accident occurred only due to the deceased, who suddenly
crossed the road without following any traffic rules. It is also contended that
at the time of accident the driver of the Maruthi van bearing Registration No.
TN-57-Z-2501 has no valid driving licence to drive the van. Driving of the van
without proper driving licence is also violation of policy conditions and hence
the insurance company is not liable to pay the compensation. Further, it is
also contended that the driver of the Maruthi van was not responsible for the
accident. Hence, the petition is liable to be dismissed.
5. Before the Tribunal, on the side of the petitioners, the 2nd
petitioner examined herself as P.W.1 and marked Ex.P.1 and Ex.P.2 and on the
side of the respondents R.W.1 was examined and Ex.R.1 was marked.
6. On consideration of the evidence on both sides, the Tribunal fixed the
compensation at Rs.90,000/- (Rupees Ninety Thousand only) with interest at 9%
from the date of petition till the date of deposit.
7. Challenging the said award passed by the Tribunal, this appeal has
been filed by the appellant/3rd respondent. The learned counsel for the
appellant is not disputing the accident. Even before the trial Court the owner
and driver of the Maruthi Van did not appear and contested the case. So, the
finding of the Tribunal regarding the rash and negligence of the driver of the
Maruthi Van is confirmed. Now, we have to decide about the liability of the
insurance company.
8. The point for determination in this appeal is:
(i) Whether the insurance company is liable to pay the compensation to the
claimants?
Point (i): On the fateful day, i.e. on 24.06.1998 at about 10.00 A.M., the
young boy Mohammed Mushtafa @ Shajagan, aged 3 . years was walking with his
mother on the main road of Anna Salai, near Kamarajar Mandram, Kodaikanal. At
that time, a heavy vehicle Maruthi van bearing Registration No.TN-57-Z-2501 was
driven by Kalil Ahmed @ Kaleel, the 3rd respondent herein, in a rash and
negligent manner and dashed against the victim. The vehicle belongs to Raja
Mohammed, the 4th respondent herein and insured with the appellant herein. As
a result of the accident the young boy died unfortunately. Hence, a criminal
case was registered in Crime No.153 of 1998 on the file of the Kodaikanal Police
Station.
9.The learned counsel for the appellant submitted that the Maruthi Van
bearing Registration No.TN-57-Z-2501 was driven the 3rd respondent herein, who
is not having valid licence. So, it is violation of the insurance policy
conditions. Hence, the insurance company is not liable to pay the compensation.
10. The mother of the deceased Mohammed Mushtafa @ Shajagan is unable to
say whether the driver of the Maruthi van is having valid licence or not. On the
other hand, the appellant had taken pain to examine R.W.1 and R.W.2. R.W.1 is
the Junior Assistant of the R.T.O. Office, Periakulam. His evidence would show
that Kalil Ahmed @ Kaleel had obtained licence on 22.01.1996 and he can drive
light motor vehicles and the licence is valid up to 21.01.2016 and he is not
competent to drive heavy motor vehicles and as such he is not having a valid
licence to drive the Taxi.
11. The Evidence of R.W.2, who is the Assistant in the appellant
Insurance Company would show that the vehicle TN-57-Z-2501 is a Taxi. Ex.B1 is
the driving licence to show that the driver of the Maruthi Van has licence to
drive only light weight vehicle. It is the stand of the learned counsel for the
appellant that a person who is having LMV licence is not entitled to drive Taxi
and to drive a Taxi, the person has to obtain a Badge. To strengthen his case,
the learned counsel for the appellant relied on the decision of the Hon’ble
Supreme Court made in National Insurance Co. Ltd., V. Kusum Rai reported in 2006
(2) CTC 347, and argued that a person who has got licence to drive light weight
motor vehicle, but driven commercial vehicle would amount to violation of
insurance policy and the insurance company cannot be compelled to pay the
compensation. In this case the principle laid down by the Honourable Apex Court
is squarely applicable. In the light of the above decision of the Honourable
Supreme Court, since the driver was not having valid licence at the time of
accident, the insurance company cannot be burdened with liability. Hence, the
insurance company could not be compelled to pay compensation and the owner of
the vehicle, who is the 4th respondent herein is liable to pay the compensation.
12. Accordingly, this Civil Miscellaneous Appeal is allowed and the
appellant insurance company is discharged from its liability and the 4th
respondent alone is liable to pay the compensation to the claimants. The
appellant is entitled to costs in this appeal from the 4th respondent herein.
tk/sj
To
The Motor Accident Claims Tribunal
(Subordinate Judge)
Palani.