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2012 DIGILAW 3680 (MAD)

Dhandapani v. C. Parameswaran (deceased)

2012-08-24

ARUNA JAGADEESAN

body2012
JUDGEMENT 1. This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 25.11.2002 made in MCOP.No.47/2002 by the learned Principal District Judge (MACT) Namakkal, whereby the Tribunal awarded a sum of Rs.28,165/-as total compensation with interest at 9 per cent p.a. and fastened the liability on the 1st Respondent, the owner of the vehicle, exonerating the 2nd Respondent Insurance Company from the liability. 2. The briefly stated facts are that while the Appellant/claimant, a minor was standing on the Eastern side of the road in front of the Sirunel Kovil Primary School, the tempo (mini lorry) driven in the rash and negligent manner dashed against the claimant, as a result of which, he was thrown out and sustained head injury. The minor claimant represented by his mother Samiyathal filed the claim petition claiming a sum of Rs.1,00,000/-as total compensation. The Tribunal held that the accident had occurred only due to the rash and negligent manner driving of the driver of the tempo and accordingly, awarded compensation as stated above. 3. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly, all these findings are recorded in favour of the claimant by the Tribunal. Secondly, none of these findings, though recorded in favour of the claimant, are under challenge at the instance of any of the Respondents. In this view of the matter, there is no justification to burden the judgement by detailing facts on all these issues. Hence, the finding of the Tribunal with regard to the negligence aspect fixing the same on the part of the driver of the offending vehicle is liable to be confirmed and accordingly, it is confirmed. 4. The only contention of Mr.K.R.A.Muthukirushnan, the learned counsel for the Appellant is that the Tribunal erred in not fastening the liability to pay the compensation on the Insurance Company. The learned counsel would contend that the Insurance Company ought not to have been exonerated from liability to pay compensation. The learned counsel would further contend that the driver of the tempo had driving license only to drive LMVs and therefore, the Insurance Company is liable to pay compensation and that the compensation awarded by the Tribunal is very meagre. 5. The learned counsel would further contend that the driver of the tempo had driving license only to drive LMVs and therefore, the Insurance Company is liable to pay compensation and that the compensation awarded by the Tribunal is very meagre. 5. The learned counsel for the Appellant relied on the decision of this court reported in 2009-6-CTC-443 (The United India Insurance Company Limited Vs. Geetha and others) in support of his contention that even if there is breach of contract of insurance on the part of the owner of the vehicle, the Insurer is at liberty to proceed against the insured, after satisfying the award to the third party. The learned counsel also relied on the decision of this court reported in 2007-4-CTC-642 (R.Senthil Kumar Vs. P.Palaniswamy and others) and contended that while awarding compensation for permanent disability, the age of the claimant is an important factor and considering the young age of the injured, appropriate compensation has to be awarded. 6. On the other hand, Mr.S.Manohar, the learned counsel for the 2nd Respondent Insurance Company would contend that the vehicle was a commercial vehicle and as the driver had driving licence only to drive LMVs, the Insurance Company is not liable to indemnify the insured. The learned counsel would further contend that the claimant sustained only simple injuries and the compensation awarded by the Tribunal is just and proper. 7. This court head the learned counsel on either side and perused the records. 8. In the present case, the Appellant minor claimant sustained the following injuries:- "1. Lacerated wound 4"x1"x1" on the occipital scalp with cerebral contusion. 2. Contusion 2"x2" right fore arm. 3. Contusion 3"x3" right leg. He was admitted in the hospital on 6.4.1999 and discharged on 12.4.1999. Ex.A4 wound certificate shows that all the above said three injuries were simple in nature. Except the mother of the injured, no evidence has been let in to show that the injured suffered any disability, as a result of the injuries sustained by him. Contusion 3"x3" right leg. He was admitted in the hospital on 6.4.1999 and discharged on 12.4.1999. Ex.A4 wound certificate shows that all the above said three injuries were simple in nature. Except the mother of the injured, no evidence has been let in to show that the injured suffered any disability, as a result of the injuries sustained by him. The mother of the injured, who was examined as PW.1, has stated that prior to the accident, the injured was good in studies and after the accident, he was unable to score good marks in the subjects, but however, no evidence has been let in to prove that on account of the injuries, he has secured less marks after the accident or that the injuries sustained by him had a direct effect on his day today activities. Admittedly, he was hospitalized for 7 days. He has sustained head injuries and they appear to be simple in nature. The minor claimant was a student and therefore, there was no scope for any loss of earning either at the time of the accident or any loss of future earning. Taking into account the nature of injuries sustained by the claimant and the period of treatment undergone by him, Rs.15,000/- is awarded for the sufferings undergone by him due to the head injuries sustained by him. 9. Further, a sum of Rs.10,000/- for pain and suffering, Rs.2463.05/- for medical expenses which is borne out by medical bills Ex.P7 and rounded off to Rs.2465/-, Rs.2700/- towards transportation expenses which is borne out by Ex.P8 and Rs.2500/-for extra nourishment are awarded. In all, the claimant is entitled to a sum of Rs.32,665/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization for the enhanced amount. 10. It is not in dispute before this court that the driver was having licence only to drive LMVs, which fact has been proved by Ex.R3 driving licence exhibited by the Respondent. Therefore, the driver of the offending vehicle was not having proper licence to drive the offending vehicle at the relevant point of time, since he was holder of licence to drive LMVs only. Therefore, evidently there was a breach of conditions of the contract of insurance. 11. The Honourable Supreme Court in National Insurance Company Limited Vs. Therefore, the driver of the offending vehicle was not having proper licence to drive the offending vehicle at the relevant point of time, since he was holder of licence to drive LMVs only. Therefore, evidently there was a breach of conditions of the contract of insurance. 11. The Honourable Supreme Court in National Insurance Company Limited Vs. Swaran Singh (2004-ACJ-1-SC) has clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. It has been held that the owner would be liable for payment of compensation in a case where the driver was not having licence at all. Therefore, it was the obligation on the part of the owner to take adequate care to see that the driver had appropriate licence to drive the vehicle. In 2006-ACJ-1336-SC (M/s.National Insurance Company Limited Vs. Kusum Rai) in a case of death of a minor girl caused by a jeep which was admittedly being used as a Taxi and this is a commercial vehicle and the person who was driving the said vehicle at the time of the accident had a driving licence for driving LMVs, the Honourable Supreme Court has held that as the driver did not possess any licence to drive the commercial vehicle, there was a breach of conditions of the contract of insurance. However, keeping in view the fact that the owner remained exparte and that the victim was a minor and is from a poor back ground, who must have suffered great mental agony due to the head injury suffered by him, it may not be appropriate to make it difficult for him to secure the amount from the owner, who is guilty of breach of contract of insurance by allowing the driver, who possessed only LMV licence, to drive the commercial vehicle, viz. tempo (mini lorry). 12. In the present case, the Tribunal has held that the driver, who actually drove the offending vehicle at the time of the accident, had no valid and effective driving licence to drive the offending vehicle and thus, exonerated the Insurance Company from its liability. It is seen that the claimant is in a state of penury and compensation will not be immediately recoverable from the owner. It is seen that the claimant is in a state of penury and compensation will not be immediately recoverable from the owner. In a fact situation, like the present case, the Honourable Supreme Court, even after exonerating the Insurance Company from the liability to pay compensation, has directed the Insurance Company to pay and recover. 13. In view of the aforementioned position of law and also keeping in view the law laid down by the Honourable Supreme Court in2006-ACJ-1336-SC (M/s.National Insurance Company Limited Vs. Kusum Rai) , I have no hesitation in holding that the Insurance Company must be exonerated from the liability to pay compensation, as the driver of the offending vehicle was not having valid licence to drive the offending vehicle. But, however, placing reliance on the above dictum laid by transportation expenses Honourable Supreme Court and in the facts and circumstances and also bearing in mind that the owner did not contest the application for compensation and remained exparte, to meet the ends of justice, it is justified to pass an order directing the Insurance Company to pay the compensation awarded and recover it from the owner. 14. In the result, this Civil Miscellaneous Appeal is allowed . The impugned award is enhanced from Rs.28,615/- to Rs.32,665/-as mentioned above. In all, the claimant is entitled to a total compensation of Rs.32,665/-(Rupees thirty two thousand six hundred and sixty five only only) with interest 7.5% p.a. from the date of the claim petition till the date of realization for the enhanced amount. The 2nd Respondent Insurance Company is directed to deposit the enhanced award amount with interest at 7.5 per cent p.a. from the date of the claim petition till the date of deposit within a period of eight weeks from today. It is seen from the records that the claimant has been declared as major by this court by order dated 13.8.2012 in CMP.No.1695/2010. Hence, on the Insurance Company depositing the amount as stated above, the claimant is permitted to withdraw the entire award amount with interest. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit and it may initiate a proceedings before the concerned executing court. Hence, on the Insurance Company depositing the amount as stated above, the claimant is permitted to withdraw the entire award amount with interest. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit and it may initiate a proceedings before the concerned executing court. The executing court shall take all necessary steps by even attaching the offending vehicle if necessity arises and take the assistance of the concerned Regional Transport Authority in that regard. No costs.