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2008 DIGILAW 862 (MAD)

V. Ananthan v. Manoharan

2008-03-07

R.BANUMATHI

body2008
Judgment :- Challenge in this appeal is to the order of Motor Accidents Claims Tribunal made in M.C.O.P.No.230/2002, exonerating the Insurance Company from indemnifying the liability of the compensation payable to the appellant claimant who sustained injuries in the road traffic accident on 10.06.2000. 2. Brief facts which are necessary for disposal of these appeals are as follows:-On 10.06.2000 at about 10.25 p.m., on Erode Mettur Road, near Brinthavan Hotel, while the claimant was riding cycle driver of the TVS Suzuki bearing Registration No.TN 33 L 8489 drove the same in a rash and negligent manner and dashed against the claimant, due to which, he sustained injuries on his left leg, face, upper teeth and lower teeth. 3. After the accident, the claimant was admitted in Government Hospital, Erode. Criminal case was registered against the rider of the two wheeler in Cr.No.997/2000 under Sections 279 and 330 IPC. Alleging that the accident was due to rash and negligent driving of two wheeler, claimant has filed Petition under Section 166 M.V.Act claiming compensation of Rs.3,00,000/-. 4. Opposing the claim, the Insurance Company has filed counter stating that it would be liable to pay compensation to the claimant only if the insured has strictly complied with the terms and conditions of the policy, as stipulated in the policy and under M.V.Act. According to the Insurance Company, the insured has to prove that he has not violated either the policy conditions of the M.V.Act or the Rules. The Insurance Company has also disputed the age, income of the claimant, nature of injuries, duration of treatment and the alleged permanent disability. 5. Before the Tribunal, claimant examined himself as PW-1. Dr. Kathiravan was examined as PW-2. Exs.A-1 to A-12 were marked. On the side of the respondent, Officer from the Insurance Company was examined as RW-1. Exs.B-1 to B-3 were marked. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the rider of the two wheeler. The Tribunal further held that the rider of the two wheeler did not possess driving licence and therefore, there was breach of conditions of policy and the Tribunal held that the Insurance Company is not bound to indemnify the insured. The Tribunal further held that the rider of the two wheeler did not possess driving licence and therefore, there was breach of conditions of policy and the Tribunal held that the Insurance Company is not bound to indemnify the insured. Having regard to the injuries, the Tribunal has adopted multiplier method and awarded total compensation of Rs.1,29,750/- and held that the compensation is payable by owner of the vehicle/first respondent. 6. Challenging the order of the Tribunal, the learned Counsel for the Appellant has submitted that when there was a valid insurance policy, the Tribunal ought to have held that the Insurance Company is liable to indemnify the insured. It was further submitted that in any event, following the Swaran Singhs case, 2004 ACJ 1 (SC), Insurance Company is to be directed to pay the compensation amount to the claimant and later recover the amount from the insurer. 7. The learned Counsel for the second respondent Insurance Company has submitted that the rider of the offending vehicle did not possess valid driving licence and the Tribunal rightly exonerated the Insurance Company. It was further submitted that the Insurance Company had discharged the burden cast upon it by issuing notice to the owner of the vehicle for producing the driving licence. 8. In the light of the contentions, the only point falling for consideration is whether as per Swaran Singhs case, 2004 ACJ 1 (SC), the Insurance Company is to be directed to pay the compensation amount to the claimant and recover the compensation amount from the insurer. 9. There is no denying that motor cycle registration no.TN 33 L 8489 caused the accident, due to which, the claimant sustained injuries on his left leg and face. The claimant had lost teeth both in the upper and lower jaw. Evidence of PW-1 claimant is to the effect that two wheeler was driven in a rash and negligent manner and hit against the claimant and he sustained fracture in the teeth. The manner of accident is not in dispute. 10. Defence plea of Insurance Company is that the driver of two wheeler had no valid driving licence. Insurance Company had issued Ex.B-1 notice to the owner of the vehicle, calling upon him to produce the driving licence. Though the first Respondent has received the notice, no driving licence was produced by the first Respondent. 10. Defence plea of Insurance Company is that the driver of two wheeler had no valid driving licence. Insurance Company had issued Ex.B-1 notice to the owner of the vehicle, calling upon him to produce the driving licence. Though the first Respondent has received the notice, no driving licence was produced by the first Respondent. In Ex.A-4, Motor Vehicle Inspector Report, column No.7 also, it is mentioned that the driving licence particulars were not produced. Since the driving licence particulars are not forthcoming inspite of issuance of notice, it is to be deemed that the first respondent had no valid driving licence. 11. As per the conditions of the Insurance Policy, driver should hold valid driving licence at the time of accident. When the driver of two wheeler had no driving licence, it is a clear violation of policy conditions. 12. Of course, burden lies upon the Insurance Company to prove that the rider of the two wheeler did not possess a valid driving licence. To avoid liability of payment of compensation, onus is always on the Insurance Company to prove that the rider of the two wheeler had no valid driving licence. As stated earlier, to discharge the onus cast upon it, second respondent Insurance Company has issued notice calling upon the first respondent to furnish particulars of driving licence. When no driving licence particulars was furnished by the first respondent, it is to be inferred that the rider of the two wheeler had no valid driving licence. Evidently, there was breach of contract of insurance. 13. In Swaran Singhs Case (2004 ACJ 1) the Supreme Court has clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors and that it was obligatory on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the licence. 14. In Swaran Singhs case Supreme Court summarized the findings to the various issues and in Paragraph 102, the Supreme Court inter alia has held as follows: "(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies, are however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the burden of proof wherefor would be on them. (v)......... (vi )Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insurer under Section 149(2) of the Act. (vii)..... (viii).... (ix)...... The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insurer under Section 149(2) of the Act. (vii)..... (viii).... (ix)...... (x) 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. 15. Also in 2006 ACJ 1336 [National Insurance Co. Ltd v. Kusum Rai] and 2006 ACJ 721 (SC) - Nanjappans case, the Supreme Court has reaffirmed the position in Swaran Singhs case and has directed the Insurance Company to pay the compensation amount to the claimants with option to recover from the insured by initiating proceedings before the Executing Court. The Insurance Company shall be at liberty to seek recovery of the amount paid to the insured/claimant. 16. Insofar as the quantum, the insured in the accident sustained grievous injuries on his left leg and face, and he had also lost his teeth. After the accident, claimant had taken treatment in Government Hospital, Erode and thereafter, continued his treatment in a private hospital. In his evidence, PW-1 has stated that even after treatment, he is having pain in the left leg and that he is unable to walk, sit or squat. PW-2 Dr. Kathiravan who examined the claimant had noticed mal-union of the left lower limb. In his evidence, PW-1 has stated that even after treatment, he is having pain in the left leg and that he is unable to walk, sit or squat. PW-2 Dr. Kathiravan who examined the claimant had noticed mal-union of the left lower limb. Due to the fracture of the tibia, claimant is not in a position to carry on his regular work. PW2 had also noticed shortening of left leg by one centimeter and the movement of knee was painful and restricted. PW-2 has assessed the permanent disability at 45% and issued Ex.A-11 Disability Certificate. At the time of accident, claimant was aged 22 years. His annual income was taken as Rs.15,000/-and the Tribunal has adopted multiplier 17 and awarded Rs.1,14,750/-for permanent disability. Though the Tribunal was not right in adopting the multiplier method, since the Tribunal has not awarded compensation for pain and suffering and other heads, this Court is not inclined to interfere with the quantum of compensation. Having regard to the nature of injuries and the percentage of disability, the quantum of compensation cannot be said to be excessive or unreasonable, warranting interference. 17. The quantum of compensation awarded by the Tribunal in M.C.O.P.No. 230/2002 is confirmed. However, the order of the Tribunal exonerating the Insurance Company is set aside. This C.M.A.No is partly allowed. No costs. 18. Following the Judgment of the Supreme Court in Swaran Singhs Case and Kusum Rais case, the Insurance Company shall pay the compensation amount to the appellant/claimant and after paying the compensation, the Insurance Company may recover the amount from the owner of the vehicle -the first Respondent in the same manner as was directed by the Supreme Court in the above decisions. The second respondent Insurance Company is directed to deposit the compensation amount along with accrued interest within a period of three months from the date of receipt of a copy of this order.