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2013 DIGILAW 108 (MAD)

Selvarani v. Balasubramanian @ Thirumalairajan

2013-01-07

P.DEVADASS

body2013
Judgment 1. These 5 connected appeals arises out of a common road accident. They are heard together and are being disposed of by this common judgment. 2. The road accident took place on 23.5.2007. In this, the occupants of a Tata Sumo car, sustained multiple injuries. They claimed compensation. The details of their claim and their appeals are tabulated as under:- 3. Admittedly, at the time of accident, the driver of the offending Tata Sumo car was holding only a learner's licence. The currency of the licence is from 9.1.2007 to 8.7.2007. The accident took place on 23.5.2007. The Tribunal coming to the conclusion that since the driver was not duly licenced to drive the car, exempted the insurer of the vehicle, namely, United India Insurance Co. Ltd. from paying the quantified compensation amount to the claimants, however, directed the driver of the vehicle and its owner to pay them the compensation amounts. 4. The appeals are directed as against leaving the insurer from indemnifying the vehicle owner. Further, in C.M.A.(MD) No.8 of 2010, the appellant seeks enhancement of compensation since her sufferings are more. 5. Learned counsel for the appellants would contend that at the time of accident there was insurance coverage for the car. The appellants are third parties. For the sin of the car owner, allowing the first respondent, who is having only learner's licence to drive the car, the appellants cannot be penalised. The learned counsel would cite MAHAMOODA & ORS. Vs. UNITED INDIA INSURANCE CO. [2006 ACJ 2825] and submit that under similar circumstances, when the offending vehicle was driven by a person with learner's licence, the Hon'ble Apex Court issued direction for 'pay and recover'. The learned counsel would also cite JAWAHAR SINGH Vs. BALA JAIN AND OTHERS [2011 (7) MLJ 833 (SC)] and submit that even when the driver of the offending vehicle did not possess a driving licence, the Court issued direction for 'pay and recover'. So, according to the learned counsel for the appellants, although the driver of the vehicle was not having any licence, the Tribunal rightly saddled liability for payment of compensation on the vehicle owner, however, declined to issue direction to the Insurance Company to pay the amount and recover it from the vehicle owner. So, according to the learned counsel for the appellants, although the driver of the vehicle was not having any licence, the Tribunal rightly saddled liability for payment of compensation on the vehicle owner, however, declined to issue direction to the Insurance Company to pay the amount and recover it from the vehicle owner. The learned counsel would further contend that appellant-Kanimozhi has suffered very much and undergone surgical treatment, however, the Tribunal awarded her very less compensation. 6. On the other hand, the learned counsel for United India Insurance Co. would contend that the Tribunal has considered the driver of the vehicle as a tortfeasor, further, the vehicle owner/second respondent is a wrong-doer in allowing a person with a learner's licence to drive the vehicle. In the circumstances, the Tribunal rightly directed the first and second respondents to pay the compensation amount and rightly exempted the Insurance Company from paying the amount. The learned counsel would cite SARDARI AND OTHERS Vs. SUSHIL KUMAR AND OTHERS [ 2008 ACJ 1307 ], wherein, when the driver of the offending Tractor was not having any driving licence, the Court exempted the Insurance Company from paying the amount. The learned counsel would also contend that as per the impugned Judgment of the Tribunal, the vehicle owner and also the vehicle driver have been asked to pay, so, they are affected by the common award of the Tribunal and they have not preferred any appeal, the award is in the nature of granting benefit to the appellants, in the circumstance, the appellants have no locus stand to prefer the appeals. 7. I have considered the rival submissions, perused the materials on record and the common impugned award of the Tribunal and the citations produced by both sides. 8. In these cases, the Insurance Company has been exempted by the Tribunal. The appellants are having decrees. They cannot effectively enjoy the fruits of it by getting the amounts from the vehicle owner. The Tribunal by allowing the Insurance Company to avoid its liability under the insurance policy, really the appellants are aggrieved. To that extent, they can appeal. The vehicle owner need not appeal. But, the vehicle owner can appeal when wrongly 'pay and recover' direction is issued against him. Therefore, the contention that in the absence of appeal by the driver and the vehicle owner, the claimants cannot prefer the appeals cannot be accepted. 9. To that extent, they can appeal. The vehicle owner need not appeal. But, the vehicle owner can appeal when wrongly 'pay and recover' direction is issued against him. Therefore, the contention that in the absence of appeal by the driver and the vehicle owner, the claimants cannot prefer the appeals cannot be accepted. 9. C.M.A.(MD) No.8 of 2010 is concerned with injured Kanimozhi. She was then 13 years old. The doctor determined her disability at 75%. The Tribunal awarded her Rs.1,50,000/- as disability compensation. P.W.6 doctor had stated that ball joint in her hip has been surgically removed and she cannot sit or walk as before. Thus, there is loss of amenities of life to her. Under this head, she is awarded Rs.20,000/-. The sufferings of the minor girl is much more. The Tribunal awarded her only Rs.10,000/-towards pain and suffering. In the facts and circumstances, it is increased to Rs.20,000/-. Towards Extra-nourishment only Rs.5,000/-has been granted. It is increased to Rs.10,000/-. In other respects, we are not interfering with the award of the Tribunal. 10. The problem of driving licence of drivers of offending vehicles assumes importance, since that has become a defence for the Insurance Companies to avoid their liability on the ground of breach of terms and conditions of the policy. 11. In NATIONAL INSURANCE CO. LTD. Vs. SWARAN SINGH AND OTHERS [2004 ACJ 1], the Hon'ble Apex Court has to deal with these matters. The Court categorised the erring drivers on the point of driving licence. There may be cases of drivers having learner's licence, fake licence or not having a valid licence. In SWARAN SINGH (supra), the Hon'ble Apex Court held that in view of Section 149 of Motor Vehicles Act merely on account of these problems, the Insurance Company cannot be allowed to avoid its liability under the contract of insurance except to the extent of proving that wilfully the vehicle owner has placed the offending vehicle in the possession of a person with such driving licence or no licence. 12. Section 146 of M.V. Act prescribes compulsory insurance of vehicles plying on public roads. Section 147 of the Act, prescribes limit, such as, number of persons, extent of liability. Section 149 of the Act starts with the head note, duty of the Insurance Company to satisfy the award passed against the insured. 13. 12. Section 146 of M.V. Act prescribes compulsory insurance of vehicles plying on public roads. Section 147 of the Act, prescribes limit, such as, number of persons, extent of liability. Section 149 of the Act starts with the head note, duty of the Insurance Company to satisfy the award passed against the insured. 13. The contract of insurance is a bipartite agreement as between the insured (vehicle owner) and the insurer. Third parties, namely, road accident victims are not a party to such contract. The liability created under contract of insurance is contractual in nature. The terms and conditions therein will regulate the parties to the contract, namely, the insurer and the insured. The liability created under Section 149 M.V. Act is statutory in nature. There is distinction between the said contractual liability and the said statutory liability. 14. Liability to pay compensation to road accident victims has been statutorily imposed on the Insurance Company by directing them to satisfy the award passed against the vehicle owner (See Section 149 of the Motor Vehicles Act). It introduced the 'concept of indemnification'. When the vehicle owner is called upon to pay the compensation amount in view of his fault or fault of his driver, there is a risk for him to pay the amount to the road accident victim. To cover this risk, the vehicles on public roads must be insured with an approved Insurance Company. This has been brought about by a contract of Insurance as between the vehicle owner and the insurer. This bipartite agreement is to cover the insured from the said risk. It is an arrangement between the vehicle owner and the Insurance Company. Actually it is to safeguard the road accident victims. The road accident victims are third parties. The liability created under Section 149 of M.V. Act is statutory. 15. But, the liability created under contract of insurance as between the vehicle owner and the Insurance Company is contractual. If there is any breach of terms and conditions of the policy, it would be a matter between the vehicle owner and the Insurance Company. For that, the Insurance Company can proceed against the other party to the contract of insurance, namely, the vehicle owner. For the sin of the vehicle owner, a third party/road accident victim should not be made to suffer. 16. For that, the Insurance Company can proceed against the other party to the contract of insurance, namely, the vehicle owner. For the sin of the vehicle owner, a third party/road accident victim should not be made to suffer. 16. In such circumstances, in order to protect the road accident victims, the idea of directing the Insurance Company first to honour its statutory commitment by paying the compensation amount to the victims (See Section 149 M.V. Act) and then, by virtue of the right available to it under the contract of insurance policy, proceed against the insured for the breach of terms and conditions of the policy has been devised in NEW INDIA ASSURANCE CO. Vs. KAMALA [ 2001 (4) SCC 342 ]. 17. An innocent road accident victim should not be left in lurch, asked to run after the owners of offending vehicles with paper decrees. In Indian condition, the mental agony of a decree holder really starts when he was granted a decree. Unless, the awards are satisfied they remain paper decrees/awards. Many awards are filed in Execution Courts and they remain unexecuted. It's effect will be more on the road accident victims. That is how, 'the concept of pay and recover'. 18. In SARDARI (supra), on 4.3.2008, in similar circumstances, a two Judges Bench of the Hon'ble Apex Court held that the Insurance Company need not pay. But, on 9.5.2011, in JAWAHAR SINGH (supra), a two Judges Bench of the Hon'ble Apex Court held that when the minor, who had driven the offending vehicle, the Insurance Company cannot avoid its liability and it has to pay the compensation amount to the claimants and recover it from the vehicle owner. These are rendered by two co-equal Benches. We have to follow the latest decision. In the recent decision, when the rider of the motorcycle at the time of accident was minor, who did not hold a driving licence at all, the Hon'ble Apex Court directed the Insurance Company to pay the award amount to the road accident victims and recover it from the vehicle owner. 19. In the case before us, the Tata Sumo was driven by the first respondent, who was then having only learner's licence. As per the M.V. Act, it is also a valid driving licence. No doubt, it is a breach of terms and conditions of insurance policy. 19. In the case before us, the Tata Sumo was driven by the first respondent, who was then having only learner's licence. As per the M.V. Act, it is also a valid driving licence. No doubt, it is a breach of terms and conditions of insurance policy. But, that has not been breached by the inmates of the vehicle. No doubt, there is a duty upon the owner of the Tata Sumo car to place the vehicle in the possession of proper person. He has breached it. He has committed the fault. But, that is not the fault of the road accident victims. 20. In the circumstances, we are of the view that the Tribunal is not right in allowing the Insurance Company to avoid its statutory liability under Section 149 M.V. Act, to pay the compensation amount to the victims. It is a fit case for issuing 'pay and recover direction'. 21. In the result, in C.M.A. (MD) No.8 of 2010, the award amount is modified. The appellant is awarded Rs.2,82,000/-with 7.5% interest p.a. from the date of claim petition till deposit. Within 4 weeks from the date of receipt of a copy of this Judgment, the third respondent/United India Insurance Co. Ltd. shall deposit the entire compensation amount, less amount, if any already deposited and recover the entire amount from the second respondent. For this purpose, it need not file a separate suit. Based on the direction in this Judgment itself, it can file Execution Petition before the appropriate Court. On such deposit, the adult appellants are entitled to withdraw their compensation amount, less amount, if any already withdrawn. The minors' amount shall be kept in bank deposit upto 18 years of their age. However, the accrued interest thereon shall be regularly paid to their guardian. The Civil Miscellaneous Appeals are disposed of accordingly. No costs.