BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/11/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1790 of 1998 C.M.A.(MD)No.1791 of 1998 C.M.A.(MD)No.1790 of 1998: The Branch Manager, Oriental Insurance Co. Dindigul. ... Appellant 2nd Respondent Vs. 1.Rajumani 2.Muthuswamy alias Muthan ... Respondents 1 & 2 Petitioner 1 & 2 3.K.Pichaiammal 4.Indurani 5.Minor Algarsami rep. by mother & NF Indurani. ... Respondents 3to5 Respondents 1,3,4 C.M.A.(MD)No.1791 of 1998: The Branch Manager, Oriental Insurance Co. Dindigul. .. Appellant 2nd Respondent Vs. 1.Indurani 2.Minor Algarsami rept. by mother & NF Indurani. ... Respondents 1 & 2 Petitioner 1 & 2 3.K.Pichaiammal 4.Rajamani 5.Muthuswamy alias Muthan ... Respondents 3to5 Respondents 1,3,4 Prayer in both appeals: Appeals filed under Section 173 of the Motor Vehicles Act, 1988, against the Decree and Judgment dated 27.11.1997, passed in M.C.O.P.No.447 and 492 of 1993, on the file of the Motor Accidents Claims Tribunal (Principal District Court), Dindigul. !For Appellant ... Mr.K.Bhaskaran in both appeals ^For Respondents 1 and 2 ... Mr.P.Vairavasundaram in both Appeals and For RR4 & 5 ... Mr.P.Vairavasundaram in CmA 1791/07 :JUDGMENT
These appeals are focussed as against the judgment and decree dated
27.11.1997, passed in M.C.O.P.No.447 and 492 of 1993, on the file of the Motor
Accidents Claims Tribunal (Principal District Court), Dindigul.
2. Heard both sides. The owner of the offending vehicle remained exparte
before the Tribunal, eventhen this Court ordered notice for which steps have
been taken, but it could not be served in person. Thereupon publication was
effected for which there is no response from the owner of the vehicle, as such
the matter is proceeded further.
3. The challenge in this Civil Miscellaneous Appeals is relating to the
liability and quantum of compensation awarded by the Tribunal, vide judgment
dated 27.11.1997, to a tune of Rs.1,00,000/-(Rupees One Lakh only).
4. The gist and kernel of the grounds of appeal as stood exposited from
the grounds of appeal could be set out thus:
The Tribunal was wrong in mulcting the insurance company with liability
despite the fact that the offending vehicle was a goods vehicle in which
passengers were carried. Despite clear evidence placed before the Tribunal that
the driver of the vehicle had no driving licence at the relevant time of
accident, the Tribunal held that the insurance company had not proved the fact
that the driver of the offending vehicle had no driving licence at the relevant
time.
5. During trial, on the side of the claimants P.W.1 to P.W.26 were
examined and Exs.P.1 to 26 were marked and on the side of the respondents R.W.1
was examined and Exs.R.1 to R.5 were marked.
6. Points for consideration are
(i) Whether the deceased travelled as unauthorised passenger in the goods
vehicle or as cleaner?
(ii) Whether the driver of the offending vehicle had valid driving licence
at the relevant time of accident?
7. Point No.1: The learned counsel for the appellant/insurance company
would argue that the Insurance Company is not at all liable to honour the award
passed by the Tribunal in respect of the injury or death caused to the
unauthorised passengers, who travelled in the offending goods vehicle. By way
of torpedoing the arguments of the learned counsel for the appellant and by way
of clarifying, highlighting and spotlighting the true facts the learned counsel
for the claimants submitted that so far this case is concerned the person died
by name Alagarsamy happened to be the cleaner of the vehicle and not the
unauthorised passenger, for him insurance coverage existed as revealed from
Ex.R.1 the Insurance Policy. Perused the Ex.R.1 the policy issued by the
appellant insurance company, which would clearly demonstrate that the policy
coverage was extended to driver and cleaner. In this case Ex.A.1, the F.I.R.
clearly evidences that the deceased Alagarsamy was a cleaner and the Tribunal
also gave such a finding. Hence, the appellant’s plea that the deceased
Alagarsamy was an unauthorised passenger is turned out to be wrong and I confirm
the finding of the Tribunal that he was not an unauthorised passenger but he was
covered by the insurance policy. Accordingly, this point is decided.
8. Point No.2: By drawing the attention of this Court to the evidence of
R.W.1 the Assistant in R.T.O. the learned counsel for the appellant would
develop his arguments to the effect that when there was a clear and categorical
evidence of the official that at the relevant point of time that R.T.O. had not
renewed the driving licence of the driver of the offending vehicle, the Tribunal
was not justified in assuming and presuming otherwise and hold that the
insurance Company ought to have proved that the driver had no driving licence.
I am at a loss to understand as to what type of evidence over and above the
official’s evidence, the Insurance Company could produce. I am of the
considered opinion that the Tribunal ought to have believed that the driver had
no driving licence and accordingly should have directed the insurance company to
pay the compensation at the first instance and get it reimbursed from the owner
of the offending vehicle in commensurate with the principles of the Apex Court
in National Insurance Co., Ltd., vs. Swaran Singh and Others reported in 2004
ACJ 1. An excerpt from it would run thus:
“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”.
Absence of driving licence with the driver of the offending vehicle is nothing
to do with the coverage of the insurance policy in respect of the cleaner.
9. Accordingly, the award is modified to the effect that the insurance
company shall pay the compensation to the claimants at the first instances and
get it reimbursed from the owner of the vehicle for which no separate
proceedings need be taken but they are at liberty to initiate E.P. proceedings
in the Court and get the amount recovered. Consequently, connected M.P.(MD)
Nos.1 and 1 of 2007 are closed. No costs.
To
The Principal District Judge,
Motor Accidents Claims Tribunal,
Dindigul.
sj