{"id":89138,"date":"2010-03-18T00:00:00","date_gmt":"2010-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-muniyammal-on-18-march-2010"},"modified":"2017-01-12T11:14:09","modified_gmt":"2017-01-12T05:44:09","slug":"the-branch-manager-vs-muniyammal-on-18-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-muniyammal-on-18-march-2010","title":{"rendered":"The Branch Manager vs Muniyammal on 18 March, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
The Branch Manager vs Muniyammal on 18 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 18\/03\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN\n\nC.M.A.(MD)No.875 OF 2009\nand\nC.M.A.(MD)No.876 of 2009\nand\nM.P.(MD)Nos. 1 and 1 of 2009\n\n\nC.M.A.(MD)No.875 of 2009\n\nThe Branch Manager,\nThe New India Assurance Company Limited,\n45, 5th Flor, Moore Street,\nChennai.\t\t            ... Appellant\/2nd Respondent<\/pre>\n
Vs.\n<\/p>\n
1. Muniyammal\n<\/p>\n
2. Thangavel\t                   … Respondents 1 & 2\/Petitioners 1 & 2\n<\/p>\n
3. Kamalakannan                    … 3rd Respondent\/1st Respondent
\n(Ex-parte at Tribnal)<\/p>\n
Prayer<\/p>\n
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
\nfair and executable order made in M.C.O.P.No.714 of 2006, dated 30.01.2009, on
\nthe file of the Motor Accident Claims Tribunal Additional District and Sessions
\nJudge (Fast Track Court), Dindigul.\n<\/p>\n
!For Appellant    ... Mr.K.Elangovan\n^For Respondents  ... Mr.A.Saravanan\n\t\t      for R.1 and R.2\n\n\nC.M.A(MD)No.876 of 2009\n\nThe Branch Manager,\nThe New India Assurance Company Limited,\n45, 5th Flor, Moore Street,\nChennai.\t\t        ... Appellant\/2nd Respondent\n\nVs.\n\n\n1. Chellammal\n2. Palanisamy\n3. Minor. Poonkodi\n4. Minor. Parameswari\t\t... Respondents 1 to 4\/\n\t\t\t\t\tPetitioners 1 to 4\n5. Kamalakannan                 ... 5th Respondent\/1st Respondent\n(Ex-parte at Tribnal)\n\n\nPrayer\n\n<\/pre>\n
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
\nfair and executable order made in M.C.O.P.No.849 of 2006, dated 30.01.2009, on
\nthe file of the Motor Accident Claims Tribunal Additional District and Sessions
\nJudge (Fast Track Court), Dindigul.\n<\/p>\n
!For Appellant    ... Mr.K.Elangovan\n^For Respondents  ... Mr.J.Gunaseela Muthaiah\n\t\t      for R.1 to R.4\n\n* * * * *\n\n:COMMON JUDGMENT\n\n\n<\/pre>\n
\tThese Civil Miscellaneous Appeals have been filed by the appellants
\nagainst the common order dated 30.01.2009, made in M.C.O.P.Nos.714 and 849 of
\n2006,  by the Motor Accident Claims Tribunal Additional District and Sessions
\nJudge (Fast Track Court), Dindigul.\n<\/p>\n
\t2. The appellant is the Insurance Company.  The lorry, owned by the third
\nrespondent in C.M.A.(MD)No.875 of 2006 and the fifth respondent in
\nC.M.A.(MD)No.876 of 2006 was insured with the appellant.  The lorry hit a
\ncyclists by name Mr.Kathirvel  and Mr.Kandasamy and they died due to the
\naccident. The details of the accident are not necessary in view of the argument
\nadvanced by the learned Counsel for the appellant.\n<\/p>\n
\t3. The deceased Kathirvelu was aged about 17 years and there was no
\ndispute over the same and he was studying 12th Standard.  He was the only son of
\nthe respondents 1 and 2 in C.M.A.No.875 of 2009 and there are no other issues to
\nthe respondents 1 and 2.  The respondents 1 and 2 filed M.C.O.P.No.714 of 2006,
\non the file of the Motor Accident Claims Tribunal, Additional District
\nJudge(Fast Track Court), Dindigul claiming a sum of Rs.10,00,000\/- as
\ncompensation.\n<\/p>\n
\t4. One Mr.Selvakumar was the pillion rider in the cycle that was rode by
\nMr.Kathirvelu.  Mr.Selvakumar received injuries.\n<\/p>\n
\t5. Another person one Mr.Kandasamy died in that accident.   The legal
\nheirs of kandasamy i.e. his parents and his sisters filed M.C.O.P.No.849 of
\n2006, claiming a sum of Rs.20,00,000\/- as compensation.  According to the
\nclaimants, Mr.Kandasamy was doing the  work of mason and was earning a sum of
\nRs.9,000\/- per month.\n<\/p>\n
\t6. Before the Tribunal, a joint trial was held. Five witnesses were
\nexamined on the side of the claimants and the documents Ex.P.1 to P.16 were
\nmarked.  On the side of the appellant, two witnesses were examined and documents
\nEx.R.1 to R.6 were marked.\n<\/p>\n
\t7. The Tribunal, by an order dated 30.01.2009, awarded a sum of
\nRs.4,01,500\/- with 7.5% interest and costs to the claimants in M.C.O.P.No.714 of
\n2006 and a sum of Rs.3,63,500\/- with 7.5% interest and costs to the claimants of
\nM.C.O.P.No.849 of 2006.\n<\/p>\n
\t8. C.M.A.(MD)No.875 of 2009 is against the order in M.C.O.P.No.714 of 2006
\nand C.M.A.No.876 of 2009 is against the order in M.C.O.P.No.849 of 2006.\n<\/p>\n
\t9. Heard the learned Counsel for both sides.\n<\/p>\n
\t10. Though various grounds were raised in the appeal, the learned Counsel
\nfor the appellant confines his arguments to the effect that the Tribunal ought
\nnot to have applied the pay and recover principle in this case and the Tribunal
\nought to have directed the owner and the cleaner of the lorry to pay the
\ncompensation. While awarding the compensation to the claimants, the Tribunal
\nheld that the lorry was not driven by the driver and on the other hand, the same
\nwas driven by the cleaner and the cleaner did not have              any valid
\ndriving licence. Hence the Tribunal applied the principle of pay and recover and
\ndirected the appellant Insurance Company to pay the compensation at the first
\ninstance and thereafter to recover the same from the lorry owner and the
\ncleaner, who drove the lorry.  The Tribunal applied the principle of pay and
\nrecover, following the decision of the Honourable Apex Court reported in
\nNational Insurance Company Limited Vs. Swaran Singh and Others reported in 2004
\nACJ 1.\n<\/p>\n
\t 11. The learned Counsel for the appellant submits that he confines to the
\nonly ground that since the cleaner, who drove the vehicle, was in a drunken
\ncondition, the Tribunal ought not to have applied the principle of pay and
\nrecover.  The learned Counsel for the appellant submits that since the appellant
\nproduced Ex.R.2, the certificate issued by the Doctor relating to the
\nconsumption of alcohol by the cleaner, who drove the vehicle, the Tribunal ought
\nto have directed the lorry owner and the cleaner to pay compensation, instead of
\ndirecting the Insurance Company to pay the compensation and thereafter to
\nrecover the same.  The learned Counsel for the appellant submits that the
\nTribunal did not record any finding as to whether the cleaner of the lorry, who
\ndrove the vehicle, was under the influence of alcohol or not, based on Ex.R.2.\n<\/p>\n
\t12. On the other hand, the learned Counsel for the claimants submits that
\nthough the Tribunal referred to Ex.R.2, there was no discussion on the Ex.R.2
\nand there was no finding rendered as to whether the cleaner was under the
\ninfluence of alcohol.  In the absence of the evidence of the doctor, who issued
\nthe certificate, the Tribunal could not be found fault for not coming to the
\nconclusion that the cleaner was under the influence of alcohol, when he drove
\nthe lorry.\n<\/p>\n
\t13. I have considered the submissions made on either side.\n<\/p>\n
\t14. Two witnesses were examined on the side of the appellant Insurance
\nCompany before the Tribunal   and one was the police Inspector who inspected the
\naccident and the other was the Officer employed by the Insurance Company.  But
\nthe author of the document, namely, the doctor who issued the certificate which
\nis marked as Ex.R.2, was not examined before the Tribunal.  It is not also
\nstated as to what happened to the criminal case, in which the cleaner was
\ncharged for driving the lorry rashly and negligently resulting in causing the
\naccident and killing two persons and injuring one person.  It is a different
\nmatter if the criminal Court also recorded a finding that the cleaner was under
\nthe influence of alcohol.  But it is not so and the appellant is not in a
\nposition to state as to what happened to the criminal case.  It is also admitted
\nby the learned Counsel for the appellant that the appellant did not examine the
\ndoctor, who issued the certificate which is marked as Ex.R.2.  The doctor, who
\nis said to have issued Ex.R.2, was not produced for cross examination and
\ntherefore, Ex.R.2 could not be acted upon. The statement of the Inspector could
\nnot establish that the cleaner was under the influence of alcohol.  The
\nInspector of<\/p>\n
Police, who investigated the accident, is not competent to prove the contents of
\nthe document Ex.R.2.  In this regard a Division Bench Judgment of this Court in
\nB.Padmaiah Vs. The Union of India and Others reported in 2007 Writ L.R.7 relied
\non and paragraphs 9 and 10 of the said judgment which are relevant for this case
\nare extracted hereunder:\n<\/p>\n
“9.In the case before the Supreme Court(Hardwari Lal’s case cited supra), the
\nappellant was a Constable in the Police Department in the State of Uttar Pradesh
\nand on the charge that during the night on 16\/17.01.1991, under the influence of
\nliquor, he hurled abuses in the police station at Constable Prakash Chandra
\nPandey, a departmental enquiry was initiated against him and on the basis of the
\nenquiry report, the disciplinary authority passed an order of dismissal which
\nwas challenged by the appellant before the Public Service Tribunal, which
\ndismissed his case and the appellant further carried the matter to the High
\nCourt by way of writ petition.  Th ground taken by the Constable before the
\nTribunal that copies of certain documents like, preliminary enquiry report and
\nthe statement of the complainant made to the Inspector Virender Singh were not
\nsupplied to him, was rejected by the Tribunal on the basis that the Constable
\nhaving participated in the preliminary enquiry and inspected the entire records
\nand documents, he should have asked for copies of documents now sought for.
\nSimilarly the contention that the non-examination of Virender Singh, who was the
\ncomplainant in the case and the witness Jagdish Ram, who were allegedly
\nwitnessed the incident would be fatal to the proceedings was rejected by the
\nTribunal on the basis that the examination of Virender Singh was only formal to
\nprove the report dated 17.07.1991 and no prejudice would be caused to the
\nappellant due to such non-examination.  The Tribunal also took the view that the
\nevidence of Jagdish Ram was also not important because he had merely accompanied
\nthe Constable during medical examination.  The High Court affirmed the above
\nfindings of the Tribunal and ultimately concluded that apart from the evidence
\nof these two witnesses, there were sufficient material on record to prove the
\nincident and thus, there was no ground to interfere with the order made by the
\nTribunal and dismissed the writ petition and the same was challenged before the
\nSupreme Court.  Before the Supreme Court, the sole ground urged was as to the
\nnon-observance of the principles of natural justice by not examining the
\ncomplainant Shri Virender Singh, and the witness Jagdish Ram.  The Supreme Court
\naccepting the above contention, concluded that,
\n“3…. The Tribunal as well as the High Court have brushed aside the grievance
\nmade by the appellant that the non-examination of those two persons has
\nprejudiced his case.  Examination of these two witnesses would have revealed as
\nto whether the complaint made by Virender Singh was correct or not and to
\nestablish that he was the best person to speak to its veracity.  So also,
\nJagdish Ram, who had accompanied the appellant to the hospital for medical
\nexamination, would have been an important witness to prove the state or the
\ncondition of the appellant.  We do not think the Tribunal and the High Court
\nwere justified in thinking that non-examination of these two persons could not
\nbe material.  In these circumstances, we are of the view that the High Court and
\nthe Tribunal erred in not attaching importance to this contention of the
\nappellant.\n<\/p>\n
10. Highlighting the evidence of other witnesses, the learned Additional
\nAdvocate General appearing for the State of Uttar Pradesh submitted before the
\nSupreme Court that there were other material which were sufficient to come to
\nthe conclusion in one way or the other.  Rejecting the said contention, the
\nSupreme Court held that,<\/p>\n
“4….. But while appreciating the evidence on record the impact of the
\ntestimony of the complainant cannot be visualised.  Similarly, the evidence of
\nJagdish Ram would also bear upon the state of inebriation, if any, of the
\nappellant.”\n<\/p>\n
After holding so, Their Lordships concluded that,
\n“5. In the circumstances, we are satisfied that there was no proper enquiry held
\nby the authorities and on this short ground we quash the order of dismissal
\npassed against the appellant by setting aside the order made by the High Court
\naffirming the order of the Tribunal and direct that the appellant be reinstated
\nin service….”\n<\/p>\n
The principle laid down therein is squarely applicable to the case on hand since
\nthe witness Ravichandran, Supervisor who is said to have made the complaint was
\nnot examined.  As observed by the Supreme Court, failure to examine the material
\nwitness amounts to violation of principles of natural justice.  Further, the
\nDepartment had not taken any step to examine the said Ravichandran and there is
\nno explanation for the same.  In such circumstances, we are of the view that the
\nevidence of Ravichandran is material to prove whether he made any such complaint
\nagainst the petitioner and further more, he is the best person to speak about
\nthe veracity of the said complaint.”\n<\/p>\n
Likewise, a decision of this Court in Assistant Security Officer, Railway
\nProtection Force, Jolarpettai and Others Vs. S.Sivagnanam reported in  II LLJ
\n195 is also relied on in this regard and paragraphs 13, 15, 16 and 17 of the
\nsaid judgment are extracted hereunder:\n<\/p>\n
“13. The office of the IPF\/MS issued a memo on December 10, 1982 to the District
\nMedical Officer, Madras as follows :\n<\/p>\n
“DMO\/MS<\/p>\n
Sir,<\/p>\n
Sri S. Sivagnanam RK 1551\/AJJ attached to TTE squad on duty is faced in
\nintoxicated mood, creating nuisance. Kindly examine and advise please.\n<\/p>\n
Sd\/-\n<\/p>\n
Inspector\/RPF<\/p>\n
Madras Egmore<\/p>\n
We have already seen that the respondent was suspended on December 16, 1982 for
\nhaving been found in a drunken mood while on duty at Madras on December 10, 1982
\nwhich was not the charge framed. The charge was for having consumed alcohol
\nwhile on duty.\n<\/p>\n
There is no dispute about the fact that the respondent was kept under suspension
\non December 16, 1982 for having found in a drunken mood while on duty at Madras
\non December 10, 1982. It is significant to notice that the District Medical
\nOfficer, Madras gave a report on December 31, 1982 marked as Ex. P. 5 on the
\nbasis of the report of the Tamil Nadu Forensic Laboratory that the respondent
\nwas found to have consumed alcohol but was not under the influence of the
\nalcohol. It is useful to reproduce Ex. P. 5 hereunder :\n<\/p>\n
Southern Railway<\/p>\n
No. M\/MD 43 Office of the DRM\/MD\/MS<\/p>\n
SOR\/MAS Dn Dated December 31, 1982Sub. : Sri S. Sivagnanam RK 1551\/AJJ attached
\nto TTE Squad on duty<\/p>\n
The above named was directed for examination by DPF\/MS stating that he is found
\nin intoxicated mood and creating nuisance. He was examined and his blood and
\nurine were taken and sent to Tamil Nadu Forensic Laboratory for examination for
\nalcohol content and their report is given below :\n<\/p>\n
1. A. Vial labelled – S. Sivagnanam ….\n<\/p>\n
Blood.” *<\/p>\n
and containing a reddish turbid liquid. Detected one hundred and three (103)
\nmilligrams per cent (w\/v) of ethyl alcohol.\n<\/p>\n
2″A. Bottle labelled”… S. Sivagnanam … Urine” and containing a yellowish
\nturbid liquid. Detected one hundred and thirty two (132) milligrams percent
\n(w\/v) of ethyl alcohol).\n<\/p>\n
As per the above report, he has consumed alcohol but was not under the influence
\nof alcohol.\n<\/p>\n
Sd\/-\n<\/p>\n
DMO\/Dn\/MS<\/p>\n
The Tamil Nadu Forensic Laboratory Report mentioned in Ex. P. 5 was not marked
\nat all as an exhibit in the proceedings. Likewise the District Medical Officer
\nwho issued Ex. P. 5 was also not examined. The charge sheet dated January 25,
\n1983 was issued by the appellant alleging that the respondent consumed alcohol
\nwhile on duty at Madras. The basis of the charge is the report of the District
\nMedical Officer contained in the letter dated December 31, 1982. The respondent
\nsubmitted a reply on February 8, 1983 to the above charge memo stating that he
\nwas not doing well on December 10, 1982 and a private medical practitioner gave
\nhim some medicine and he was feeling giddy while he was on duty on that day. An
\nenquiry was conducted into the charge sheet dated January 25, 1983 under Rule 44
\nof the Railway Protection Force Rules, 1959 and the enquiry was conducted on
\nMarch 4, 1983, March 15, 1983 March 24, 1983, April 4, 1983 and April 23, 1983.
\nOne R. S. Veerannan, Prosecuting Ticket Collector was examined as P.W. 1. One M.
\nSrinivasan was examined as P.W. 2, one S. Perumal was examined as P.W. 3 and O.
\nP. Santhanam, Assistant Divisional Medical Officer was examined as P.W. 4. It is
\nseen from the proceedings that the District Medical Officer who issued the
\nreport dated December 31, 1982 under Ex. P. 5 was not at all examined. The
\nenquiry proceedings do not also show as to who produced the report dated
\nDecember 31, 1982 especially when the District Medical Officer has not been
\nexamined.\n<\/p>\n
15. As already indicated, the respondent was suspended from service on the
\nground that he was found on drunken mood on December 10, 1982. This allegation
\nwas given up in the charge memo which merely stated that the respondent consumed
\nalcohol while on duty on December 10, 1982. The basis of the charge is the
\nreport of the Assistant Divisional Medical Officer and the Medical Report dated
\nDecember 31, 1982 of the District Medical Officer. Admittedly the District
\nMedical Officer has not been examined and the report said to have been given by
\nhim has not been formally proved in a manner known to law in the departmental
\nenquiry. As a matter of fact, none of the witnesses examined in the departmental
\nenquiry speaks about the report dated December 31, 1982 of the Chief Medical
\nOfficer. Despite the same, the aforesaid report has been marked in the
\ndepartmental enquiry. The Enquiry Officer relies upon the report of the Tamil
\nNadu Forensic Laboratory which in turn has been referred to in the report dated
\nDecember 31, 1982 of the District Medical Officer and the said report has not
\nbeen produced in the departmental enquiry. The report given by the Assistant
\nDivisional Medical Officer, Southern Railway, Madras Division dated December 10,
\n1982 reads as follows :\n<\/p>\n
Southern Railway<\/p>\n
Medical Department<\/p>\n
Case Sheet for Examination of Drunkenness<\/p>\n
1. Name and address\/Design of Suspect : S. Sivagnanam, Rakshak\/Arakkonam,
\nGovidaraja Naicker St., Madras-600 012.\n<\/p>\n
2. Date of time of examination : Urine and blood samples taken at, 12.05 hrs. on
\nDecember 10, 1982<\/p>\n
3. What is the appearance of suspect : Normal<\/p>\n
Is he drowsy : No<\/p>\n
Are his upper eye lids and features relaxed : No<\/p>\n
Are his eyes and face congested : No<\/p>\n
Is he sweating and slobbering : No<\/p>\n
4. How does he behave :\n<\/p>\n
Is he noisy ? : No<\/p>\n
Boisterous ? : No<\/p>\n
Silly ? : No<\/p>\n
Excited ? : No<\/p>\n
Garrulous ? : No<\/p>\n
Restless ? : No<\/p>\n
Heavy ? : No<\/p>\n
5. His conception of time space normal ? (If it is, say Yes\/If it is not, repeat
\nstatements indicating the contrary : Yes<\/p>\n
6. Test his memory, ask him, for examples, to remember a couple of addresses or
\nto describe the accede to which led to his arrest and ask him to describe some
\nevent indicated by a picture in an illustrated paper : Memory not impaired<\/p>\n
7 Note his speech, is it thick, nasal lisping, stammering or stumbling ? :
\nNormal<\/p>\n
Make him repeat difficult words or read aloud a small newspaper notice :\n<\/p>\n
8. Notice his gait. Is it swaying and a toxic ? Perform Rombeg’s test : Gait-
\nnormal<\/p>\n
9. Are the movements of his hands steady ? Test his handwriting by making him
\nwrite his name, age, occupation and address : Hands-steady<\/p>\n
10. Examine his pupils – Note whether they are dilated, contracted or irregular
\nand their reaction to light. Test his sense of pain : Pupils – reactive and
\nnormal. Pain perception normal<\/p>\n
11. Does he smell of alcohol : Smells of alcohol<\/p>\n
12. Are there signs of other diseases such as epilepsy or apoplexy ? : No
\nevidence of epilepsy or apoplexy<\/p>\n
13. Add any other observation bearing on this matter<\/p>\n
a) Has the examination revealed symptoms indicating that his condition is not
\nnormal ? : No<\/p>\n
b) Is it proved that the symptoms found are due to alcohol : No.<\/p>\n
c) Is the condition one of drunkenness ? : No.<\/p>\n
Date : December 10, 1982<\/p>\n
Place : Egmore, Madras-8 Sd\/-\n<\/p>\n
Signature and designation of examining doctor.\n<\/p>\n
(Dr. D. P. Santhanam)<\/p>\n
Asst. Divisional Medical Officer,<\/p>\n
Southern Railway<\/p>\n
Madras Division.\n<\/p>\n
Madras-600008.\n<\/p>\n
A reading of the said report does not indicate that the respondent has either
\nconsumed alcohol or he was found in a drunken condition. The Assistant Medical
\nOfficer, Southern Railway, Madras Division examined the respondent on December
\n10, 1982 at 12.05 hours to find out whether the respondent was drunk. On such
\nexamination it was found that his behaviour was normal, his speech was normal,
\nhis conception of time and space was normal, his gait was normal and reaction of
\npupils to light was normal. The Assistant Divisional Medical Officer found that
\nthe respondent smelt of alcohol, but, under column (b), he has opined that the
\nsymptoms of smelling alcohol was not due to alcohol, and that he was not in a
\ndrunken condition.\n<\/p>\n
16. The report of the Enquiry Officer proceeds on the misapprehension that the
\ncharge against the respondent was that he was in an intoxicated mood while on
\nduty on December 10, 1982. The Enquiry Officer also relies on the undisclosed
\nreport of the Tamil Nadu Forensic Laboratory to find the respondent guilty of
\nthe charge levelled against him. That apart, none of the witnesses speak about
\nEx. P. 5 medical Report.\n<\/p>\n
The Enquiry Officer, in our opinion, has not properly understood the charge
\nframed against him and has proceeded on the misapprehension that the charge
\nagainst the respondent was that he was found in an intoxicated mood on December
\n10, 1982 while on court duty at Railway Magistrate’s Court.\n<\/p>\n
17. On carefully going through the materials on record, it is clear to us that
\nthere is no evidence at all to find the respondent guilty of the charge levelled
\nagainst him. The finding of the Enquiry Officer is not only perverse, but it is
\nalso unreasonable and has resulted in miscarriage of justice. We are of the
\nopinion that the finding of the enquiry Officer that the respondent has consumed
\nalcohol while on duty cannot be sustained. As such, we have no hesitation to
\ninterfere with the same. That being so, for the reasons stated by us above,
\nthere is no ground to interfere with the ultimate conclusion reached by the
\nlearned Single Judge.”\n<\/p>\n
\t15. Under these circumstances, I am of the view that it is not established
\nthat the cleaner of the lorry, who drove the lorry at the time of the accident
\nwas under the influence of alcohol.\n<\/p>\n
\t16. Hence, I do not find any infirmity in the order of the Tribunal in
\napplying Swaran Singh case reported in 2004 ACJ 1 and directed the appellant
\nInsurance Company to pay the compensation at the first instance and thereafter
\nrecover from the lorry owner   and the cleaner. The Tribunal has correctly held
\nthat since the cleaner, who drove the vehicle did not have a valid driving
\nlicence to drive a lorry, the Insurance Company was not liable and however, the
\nappellant Insurance Company was directed to pay the compensation at the first
\ninstance and to recover the same from the lorry owner and the cleaner by
\napplying the principle of pay and recover, as enunciated by the Apex Court in
\nSwaran Singh case refererd to above, as the third party risk is involved.  A
\nDivision Bench of this Court in United India Insurance Company Limited Vs.
\nS.Saravan and Another reported in 2009(2) TN MAC 103(DB)also surveyed all the
\njudgments under Section 149(2)(a)(ii) of the Motor Vehicle Act, including Swaran
\nSingh case and held that pay and recover principle has to be applied in cases
\nwhere the third party risk is involved.  Para 9 of the judgment of the Division
\nBench is extracted hereunder:\n<\/p>\n
“9…. It was said that the assured might be a man of straw and the Insurer
\nmight not be able to recover anything from him.  But the answer to that is that
\nit is the Insurer’s bad luck.  In such circumstances the injured person also
\nwould not have been able to recover the damages suffered by him from the
\nassured, the person causing the injuries.  The loss had to fall on some one and
\nthe statute has thought fit that it shall be borne by the Insurer.  That also
\nseems to us to be equitable for the loss falls on the Insurer in the course of
\nhis carrying on his business, a business out of which he makes profit, and he
\ncould so arrange his business that in the net result he would never suffer a
\nloss.  On the other hand, if the loss fell on the injured person, it would be
\ndue to no fault of his, it would have been a loss suffered by him arising out of
\nan incident in the happening of which he had no hand at all.”\n<\/p>\n
\t17. The learned Counsel for the appellant states that pursuant to the
\norder dated 16.09.2009 of this Court directing the appellant to deposit 50% of
\nthe award amount with accrued interest and costs for granting interim stay, the
\nappellant deposited the same and complied with the order.\n<\/p>\n
\t18. Since I have confirmed the order of the Tribunal, I hereby direct the
\nappellant to deposit balance amount within a period of four weeks from the date
\nof receipt of a copy of this order and thereafter to initiate execution
\nproceedings directly against the lorry owner and the cleaner who drove the
\nvehicle as held by the Honourable Apex Court in  Swaran Singh case reported in
\n2004 ACJ 1.   The claimants are permitted to withdraw the deposited amount.\n<\/p>\n
\t19. In the result, these Civil Miscellaneous Appeals are disposed in the
\nabove terms. Consequently, the connected Miscellaneous Petitions are closed. No
\ncosts.\n<\/p>\n
ssl<\/p>\n
To<\/p>\n
The Motor Accident Claims Tribunal,
\nthe Additional District and Sessions Judge
\n(Fast Track Court), Dindigul.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Branch Manager vs Muniyammal on 18 March, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 18\/03\/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.875 OF 2009 and C.M.A.(MD)No.876 of 2009 and M.P.(MD)Nos. 1 and 1 of 2009 C.M.A.(MD)No.875 of 2009 The Branch Manager, The New India Assurance Company Limited, 45, 5th […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-89138","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Branch Manager vs Muniyammal on 18 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-muniyammal-on-18-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Branch Manager vs Muniyammal on 18 March, 2010 - 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