Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 581 (MAD)

Cholamandalam MS General Insurance v. Veerasamy

2010-02-16

R.SUBBIAH

body2010
Judgment : 1. This Appeal is filed by the Insurance Company as against the award dated 25.3.2008 passed by the Motor Accident Claims Tribunal (Subordinate Judge), Mettur, in M.C.O.P. No.17 of 2007, whereby the appellant-Insurance Company was directed to pay the compensation amount to respondent Nos.1 and 2/Claimants and permitted to recover the same from the owner of the vehicle. 2. The facts, which are necessary to decide the issue involved in the Appeal, are as follows: (a) Respondents 1 and 2 herein are the parents of the deceased Manoj On 4.8.2005, while the said manoj was riding his TVS 50 bearing registration No.TN-27-T-0569 from his house to Mettur along with his friend, another Motor Cycle bearing registration No.TN-27-U-1619 driven by the 3rd respondent came in a rash and negligent manner from the opposite direction and dashed against the TVS 50 and as a result of which, both were thrown out of the vehicle and had sustained grievous injuries and were immediately admitted in the Government Hospital and in spite of treatment, the said Manoj died on 9.8.2005. Hence, respondent Nos.1 and 2 have made a claim for a sum of Rs.10 Lakhs as compensation for the death of the deceased Manoj as against the owner and the insurer of the Motor cycle. (b) The said claim was resisted by the appellant-Insurance Company on the ground that at time of the accident, the rider of the Motor cycle did not at the time of the accident, the rider of the Motor cycle did not possess a valid license. Therefore, there is a violation of the Insurance Policy conditions and the appellant-Insurance Company cannot be made liable to pay the compensation. (c) In order to prove the defence, on the side of the appellant-Insurance Company, two witnesses were examined as R.Ws.1 and 2 and the documents were marked as Exs.R-1 and R-2. By accepting the defence of the appellant-Insurance Company, the Tribunal came to the conclusion that the appellant-Insurance Company has to pay the compensation amount and recover the same from the owner of the vehicle i.e. the 3rd respondent herein since there is a violation of the policy conditions. Aggrieved over the said finding, the present Appeal is filed by the Insurance Company. 3. Learned counsel for the appellant, by relying upon the judgment reported in national Insurance Co. Aggrieved over the said finding, the present Appeal is filed by the Insurance Company. 3. Learned counsel for the appellant, by relying upon the judgment reported in national Insurance Co. Ltd. v. Vidhyadhar Mahariwala and others, 2008 (6) CTC 254 (SC): 2008 ACJ 2860 , would contend that the Insurance Company cannot be made liable to pay the compensation when the appellant having proved that the driving licence had expired more than two years prior to the accident. Under such circumstances, the observation when the appellant having accident. Under such circumstances, the observation made by the Insurance Company to pay the amount and to recover the same from the owner of the vehicle is not sustainable. Therefore, by setting aside the said finding, the Insurance Company has got to be directed to pay the entire compensation. 4. Per Contra, the learned counsel for the 1st and 2nd respondents/claimants would submit that in the judgment relied on by the appellant, the question of ‘Payment and recovery” was not dealt with by the Supreme Court. By inviting the attention of this Court. By inviting the attention of this Court to the catena of judgments, namely,- New India Assurance Co, Shimla v.V.Kamala and others, 2001(4)SCC432: AIR 2001 SC1419(1); Oriental Insurance Co. v. Zaharulnisha and others, AIR 2001 SC 2218; National Insurance Co. Ltd. v. Annappa Irappa Nesaria and others, 2008 (3) SCC 464 : AIR 2008 SC 1418 (1); Oriental Insurance Co. Ltd. v. Mohammad Husain and another, 2005 (4) CTC 127, and New India Assurance Co. Ltd. v. V. Bommi, 2009 (2) TN MAC 86 (DB): 2009 (5) MLJ 1349 . The Learned counsel would contend that the Insurance Company cannot deny its liability in paying the compensation on the ground of non-possession of a driving licence to drive the vehicle when there is a coverage of Insurance Police to the vehicle. Hence, the Appeal is liable to be dismissed. 6. In view of the submissions made by the learned counsel on either side, the only question that has to be decided in this Appeal is, whether the observation made by the Tribunal namely, to pay and recover the amount from the owner of the vehicle, is sustainable or not? To decide the same, it is necessary to look on by the learned counsel for the 1st and 2nd respondents. 7. The facts in Oriental Insurance Co. To decide the same, it is necessary to look on by the learned counsel for the 1st and 2nd respondents. 7. The facts in Oriental Insurance Co. v. Zaharulnisha and others, AIR 2008 SC 2218 would reveal that the accident was caused by a two wheeler when the victim was going on a bicycle, when the legal heirs filed a Claim Petition against the owner of the scooter as well as its Insurer, a defence was taken by the Insurance Company that the rider of the scooter and he was in possession of a licence only to drive heavy motor vehicles, which is totally a different clause of vehicle in terms of Section 10 of the Motor Vehicle Act, therefore, there was breach of Insurance Police conditions and the appellant Company was not liable to satisfy the award. In that case, it has been held by the Hon’ble Supreme Court as follows: “17. (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 license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avid its liability towards insured unless the said breach of breaches on 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 insured under Section 149(2) of the Act”. 18. In the light of the above settled proposition of law, the appellant-Insurance Company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admitted had no valid and effective licence to drive the vehicle on the day of accident. The Scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the Motor Vehicle Act. 19. The Scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the Motor Vehicle Act. 19. In the result, the Appeal is allowed to the limited extent and it is directed that the appellant-Insurance Company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle. Viz. respondent No.8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this Appeal….” 8. In New India Assurance Co., Shimal v. V. Kamla and others, 2001 (4) SCC 342 : AIR 2001 SC 1419 (1), it has been held as follows: “25. The position can be summed up thus: The Insurer and insured are bound by the conditions enumerated in the Policy and the Insurer is not liable to the insured if there is violation of any Policy condition. But the Insurer who is made statutorily liable to pay compensation to third parties on account of the Certificate of Insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of Policy condition on account of the vehicle being driven without a valid licence. Learned counsel for the insured contended that it is enough if the establishes that he made all the enquiries and believed bona fide that the driver employed bu him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the Insurance Company succeeds in establishing that there was breach of the Policy condition, the claims Tribunal shall directed the insured to pay that amount to the Insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the Claimants-third Parties) from the insured person”. 9. In National Insurance Co. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the Claimants-third Parties) from the insured person”. 9. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria and others, 2008 (3) SCC 464 : AIR 2008 SC 1418 (1), it has been held as follows: “16…..It is evident that transport vehicle has not been substituted for ‘medium goods vehicle’ and ‘heavy goods vehicle’. A driver who had a valid licence to drive a light Motor vehicle, therefore, was authorized to driver a light goods vehicle as well. 17. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law.” 10. A reading of the said judgments would show that if there is a fundamental breach in respect of the defence available to the insured under Section 149(2) of the Act, the Insurer can repudiate their liability to pay the compensation. So far as the non-possession of the driving licence is concerned, it is only a breach of policy condition and it cannot be said that it is not a breach of defence available to the insured under Section 149(2) of the Act and under such circumstances, I do not find any error in the observation made by the Tribunal in directing the Insurance Company to pay the compensation and to recover the same from the owner of the vehicle. Though the decision reported in National Insurance Co. Ltd. v. Annappa Irappa Nesaria and others, 2008 (3) SCC 464 : AIR 2008 SC 1418 (1), was relied upon by the appellant, in the said judgment, the question of “Payment and recovery” was not dealt with, I am not inclined to accept the submission made by the learned counsel for the appellant. 11. With regard to the quantum of compensation, I find from the materials available on record that in order to prove the income of the deceased, the father of the deceased was working as a labour in “Vasu Bricks” and earning a sum of Rs.6,000/- per month. Further, Ex.P-4 was marked to prove the said fact. However, the Tribunal has taken only a sum of Rs.4,000/- as the monthly income of the deceased and after deducting monthly loss of income to the family. Further, Ex.P-4 was marked to prove the said fact. However, the Tribunal has taken only a sum of Rs.4,000/- as the monthly income of the deceased and after deducting monthly loss of income to the family. Taking into Consideration the average age of the parents of the deceased, the Tribunal applied the multiplier of 11 and arrived at a sum of Rs.3,30,000/- as Loss of Income,. The apart, by awarding another sum of Rs.25,000/- under different conventional heads, passed an award for a sum of Rs.3,55,000/- I do not find any error in the quantum of compensation awarded by the Tribunal. Hence, I am not inclined to interfere with the same. Accordingly, the Civil Miscellaneous Appeal fails and is dismissed. No costs. Consequently, connected M.P. is closed.