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2014 DIGILAW 1942 (MAD)

R. Vimalan v. Deivanai

2014-07-04

S.MANIKUMAR

body2014
Judgment 1. In the accident which occurred on 03.05.2011 about 11 hours, the first respondent sustained injuries. The vehicle TATA Ace bearing registration No.TN-24-A-7593, involved in the accident, has insured with the Oriental Insurance Company Limited, Krishnagiri – second respondent in the claim petition. 2. The owner has filed a counter affidavit denying the manner of accident and also the consequential liability to pay compensation. 3. Oriental Insurance Company submitted that it is not liable to pay compensation on the ground that the vehicle was driven by its driver without a valid badge. They prayed for total exoneration. 4. Before the Claims Tribunal, the first respondent/claimant examined herself as PW.1. PW.2 is the Record Clerk in the Government Hospital, Krishnagiri. PW.3 is the Doctor working in Government Hospital, Krishnagiri, who treated the first respondent. PW.4 is the Doctor, who clinically examined the respondent/claimant with reference to medical records stated supra. Ex.P1-dated 05.05.2011-Copy of the First Information Report registered on the file of Krishnagiri Town Police Station, Ex.P2-dated 05.05.2011-Copy of the Accident Register of the first Respondent herein, Ex.P3-Copy of the Insurance Policy for the vehicle bearing registration No.TN-24-A-7593, Ex.P4-Medical Receipts, Ex.P5-Medical Record, issued by the Government Hospital, Krishnagiri, in favour of the first Respondent herein, Ex.P6-X ray and Ex.P7-Wound Certificate, in favour the first Respondent herein, have been marked. Two witnesses have been examined on behalf of the Oriental Insurance Company. RW.1 is the Assistant from the Regional Transport Office, Krishnagiri. RW.2 is the Officer from the Insurance Company. RW.1 has deposed that though the driver had Light Motor Vehicle (LMV) Licence, the Transport Department did not issue any badge to drive the offending vehicle. Ex.R1 copy of the licence of the driver has been marked. Ex.R2 is the copy of the Motor Vehicle Inspector's Report for the vehicle bearing registration No.TN-24-A-7593. Ex.R3 is the copy of the proceedings initiated against the driver for non-possession of the badge, in which a fine amount of Rs.1,000/- has been levied. Ex.R4 is the copy of the Insurance Policy for TATA Ace Vehicle. RW.1 and RW.2 witnesses, examined on behalf of the Oriental Insurance Company Limited, Chennai, have discharged the burden that the owner of the vehicle had allowed the vehicle bearing registration No.TN-24-A-7593 to be driven, by a person without a badge. Ex.R4 is the copy of the Insurance Policy for TATA Ace Vehicle. RW.1 and RW.2 witnesses, examined on behalf of the Oriental Insurance Company Limited, Chennai, have discharged the burden that the owner of the vehicle had allowed the vehicle bearing registration No.TN-24-A-7593 to be driven, by a person without a badge. Thus, when there is a violation of conditions of policy, the insurer is not required to indemnify the insured, but he has a statutory obligation to pay compensation to a third party and seek for recovery against the insured. 5. On the quantum of compensation, it is the case of the respondent/claimant that she sustained a fracture in the left knee and other parts of the body. Immediately after the accident, she was provided treatment in the Government Hospital, Krishnagiri. To prove the nature of injuries, treatment taken and the extent of disablement, she has marked Ex.P2-Copy of the Accident Register dated 05.05.2011, Ex.P4-Medical Bills, Ex.P5-Medical Record issued by the Government Hospital, Krishnagiri, and Ex.P6- X ray. PW.4 – Doctor, who clinically examined the respondent/claimant with reference to the medical records stated supra, supported the contention of the respondent/claimant that she sustained injuries in the accident. Upon perusal of Ex.P6-X ray, the Claims Tribunal has recorded that the said X-ray has been taken when the respondent/claimant was admitted in Government Hospital, Krishnagiri, for treatment, wherein a fracture in the left knee has been recorded. PW.4 Doctor has assessed the extent of disablement as 25%. However, the Claims Tribunal has reduced the same to 20% and awarded Rs.40,000/-as disability compensation. The Claims Tribunal has further awarded Rs.5,000/-, for pain and suffering, Rs.5,000/- for nutrition, Rs.2,000/- for transportation, Rs.2,000/- for attendant charges, Rs.5,000/- for loss of income during treatment, Rs.51,528/-for medical expenses as per Ex.P4. Considering the fact that the respondent/claimant aged about 60 years and sustained fracture would have suffered 20% disability as assessed by PW.4-Doctor, the quantum of compensation cannot be said to be excessive. 6. Though Mr. V. Lakshminarayan, learned counsel for the appellant contended that the Claims Tribunal ought to have fastened the entire liability on the Insurance Company without a right of recovery, this Court is not inclined to accept the same, in view of the Hon'ble Division Bench decisions of this Court in United India Insurance Company Ltd., v. S.Saravanan reported in 2009 (2) TNMAC 103 (DB), United India Insurance Company Limited, Salem, Vs. V.Vijayakumar, represented by his mother Kalamani and three others, reported in 2010 (2) TN MAC 388 (DB) and Bajaj Alliance General Insurance Company Ltd., Pune, Vs. Manimozhi and four others, reported in 2010 (2) TN MAC 542 (DB). 7. The question as to whether, it is open to the insurer to seek for total exoneration for payment of compensation to a third party victim or whether it has only a right of recovery, Section 149 (4) and (5) of the Motor Vehicle's Act, has been extensively considered in ICICI Lombard General Insurance Company Vs. Annakkili, reported in 2012 (1) TN MAC 226, wherein this Court following the principles of law laid down by the Apex Court and the Division bench judgments that payment of compensation to a third party victim or legal representatives of the deceased, as the case may be, being statutory and considering the interpretation given by the Supreme Court to Sections 147, 149 (4) and (5) vis-a-vis the defences open to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act and by holding that the very introduction of the words, "pay compensation to the third party and recover the same from the insured" in Section 149(4) and (5) of the Act, would reflect the divine intention of the legislature to protect the interest of the third parties, vis-a-vis inter-se disputes between the insured and insurer, held that the insurer cannot avoid its liability to pay compensation to a third party, but such avoidance can be made only, if willful breach of terms and conditions of the policy by the insured, by consciously and recklessly allowing the driver, who did not possess a valid and effective driving licence, to drive the vehicle and even if such breach is proved, payment of compensation to the third party victim cannot, at any stretch of imagination, be avoided by the Company and that the only remedy open to the insurer in law is to pay the compensation to the third party victims and recover from the insured. In view of the above, the insurer cannot be totally exonerated from payment of compensation to third party, but it can avoid its liability only to the insured. 8. In a recent decision in S.Iyyapan v. United India Insurance Co. In view of the above, the insurer cannot be totally exonerated from payment of compensation to third party, but it can avoid its liability only to the insured. 8. In a recent decision in S.Iyyapan v. United India Insurance Co. Ltd., reported in 2013 (7) SCC 62 , the Hon'ble Supreme Court, while dealing with a similar contention and after considering a catena of decisions, at Paragraph 17, held as follows: “Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.” In view of the above, this Court is of the view that there is no manifest illegality in fastening liability on the second respondent/Insurance Company to pay compensation to the first respondent/claimant, with a right to recover the same, from the appellant/owner of the vehicle. 9. In fine, the Civil Miscellaneous Appeal is dismissed. No costs. 10. In view of the dismissal of the Civil Miscellaneous Appeal, The second respondent/Insurance Company is directed to deposit the entire award amount, if not already deposited, with accrued interest and costs, to the credit of MCOP.No.1299 of 2013 on the file of the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Krishnagiri, within a period of four weeks from the date of receipt of a copy of this order, and thereafter, to recover the same from the appellant/owner of the offending vehicle as per the decision in ''Oriental Insurance Co. Ltd., Vs. Nanjappan and Others'', reported in2005 SCC (Cri) 148.On such deposit being made, the first respondent/claimant is permitted to withdraw the same with interest and costs, by making necessary application before the Tribunal.