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2013 DIGILAW 4096 (MAD)

Divisional Manager v. Krishnan

2013-12-04

S.PALANIVELU

body2013
Judgment : 1. The appeal is directed against the award passed in M.A.C.T.O.P.No.239 of 2006, dated 12.1.2009 on the file of the Motor Accidents claims Tribunal (Principal Subordinate Judge) at Tiruvannamalai. 2. On 8.2.2005 at about 2.00 p.m. along Devadhanapattu lake bond road when the the claimant was riding his TVS 50 mope, a lorry belonging to the second respondent came behind in a rash and negligent manner and dashed against the moped causing the accident. The claimant has filed the claim petition for compensation of Rs.2 lakhs. 3. In the counter filed by the appellant Insurance Company contains usual denials. But in the additional counter the appellants pleaded the following: There was a delay of 3 days in registering the FIR and so the real vehicle which cause the accident was not included in this case. For the purpose of claiming compensation on false grounds with the connivance of the first respondent his vehicle has been subsequently included in this case. There was a delay of 4 days in inspecting the offending vehicle by the Motor Vehicle Inspector. The petitioner has failed to mention the name of the accused either in the petition or in the proof affidavit. Even in the Motor vehicle inspection Report the name of the driver of the vehicle does not find a place. In the Accident Register and wound certificate there was no mentioning of the vehicle number. Therefore this petition has been filed with false particulars. The lorry bearing Regn.No.TAI 1339 had been implicated falsely to get unjust enrichment which is come of the collusion and connivance between the owner, driver and the petitioner. The driver of the vehicle had no valid driving licence at the time of the accident which is the violation of the insurance policy conditions. So, this respondent is not liable to pay any compensation amount. 4. As regards the delay in filing the FIR, the Tribunal has given a finding that mere delay in lodging the FIR would not show that the contents are false. It has also followed the decision of the Honourable Supreme Court in AIR 2001 SC 2075 [State of Himachal Pradesh v. Gian Chand] wherein Their Lordships have observed that the FIR is not a conclusive proof of negligence and its relevance is virtually limited to see that the accident has taken place. It has also followed the decision of the Honourable Supreme Court in AIR 2001 SC 2075 [State of Himachal Pradesh v. Gian Chand] wherein Their Lordships have observed that the FIR is not a conclusive proof of negligence and its relevance is virtually limited to see that the accident has taken place. The rashness and negligence could be proved by the parties before the Motor Vehicle Claims Tribunal independently. Therefore applying the dictum laid by the Honourable Supreme Court, mere delay in lodging FIR alone will not throw any suspicion over the contents of FIR. 5. Likewise, even though delay occurred in sending the vehicle to the Motor Vehicle Inspector, it cannot be concluded that the vehicle was substituted. The Tribunal has given findings as to the above said delay which are quite appropriate. The delay as pleaded by the appellant will not affect the case of the claimant. 6. The appellant's company has also taken a defence that the driver of the lorry was not having valid licence at the time of accident and hence whatever be the compensation, the insurer has to pay. As regards this point of law, the Honourable Supreme Court has decided in cases that if the driver of the offending vehicle was not having valid licence at the time of accident, the insurer has to pay the compensation amount to the victim at the first instance and then recover the same from the insured. 7. In 2003 ACJ 611 (S.C.) [United India Insurance Co. Ltd., v. Lehru and others] it is observed as follows: "If the driver had no valid driving licence at the time of the accident, the insurance company is not liable to pay the compensation amount and however in the interest of justice and to safeguard the fundamental rights of the victim, the insurance company is directed to pay the compensation amount to the victim at the first instance and then recover the said amount from the owner of the vehicle." 8. In 2007 (2) TLNJ 321 (SCl) [Ishwar Chandra & Others] it is held thus: "It has been further observed in the said case law that in case of violation of any condition in the Insurance policy, the insurer after satisfying the claim of the victim can recover the said amount from the insured viz., the owner of the vehicle to institute separate proceedings." 9. In 2008 (3) L.W.1104 SC [National Insurance Co. Ltd., v. Geeta Bhat & Others] it is held as under: "The driver of the offending vehicle has no driving licence at the time of the accident, then the insurance company is not liable to pay the compensation amount and however in the interest of justice, the insurance company has to pay the award amount at the first instance and then recover the same form the owner of the vehicle." 10. In view of the above said judicial pronouncements by the Apex Court, there shall be an order directing the insurer to first satisfy the claim of the victim and they can recover the same from the insured afterwards. The Tribunal has recorded findings following the above said decisions of the Honourable Supreme Court. No valid ground has been made out in this appeal to take a different view. The findings and observations of the Tribunal are confirmed. 11. As regards quantum of compensation, there is no ground made out in the memorandum of appeal. Hence, the judgment and decree passed by the Tribunal are confirmed. The appeal has no merits. 12. In fine, the Civil Miscellaneous Appeal is dismissed. No costs.