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2015 DIGILAW 2885 (MAD)

Muthu Meenakshi v. Srinivasan

2015-08-26

P.DEVADASS

body2015
JUDGMENT Instead of harpening much on the procedural wrangles which are all actually hand-maid of justice and not justice itself and truly advancing the cause of justice is really the function of a Court of justice, but it must be legal justice. This is a short introduction to this case. 2. The undeniable factual matrix discloses that the first respondent, namely Srinvasan sustained personal injuries in a road accident which took place as early as on 25.03.1997, he claimed compensation in M.C.O.P.No.335 of 1998 before the Motor Accident Claims Tribunal(Sub-ordinate Judge), Pudukkottai. 3. The owner of the vehicle, namely, Muthulakshmi was set exparte on 9.2.1999, the Tribunal appreciating the oral and documentary evidence adduced before it, found fault with the driver of the said Muthu Meenakshi and concluded that her driver was rash and negligent in driving the vehicle on the road and he was responsible for the accident and assessed the compensation payable to the first respondent altogether at Rs.59,500/- with 12% interest p.a. From the date of claim petition and with costs. 4. The vehicle owner filed I.A.No.461 of 2004 before the Claims Tribunal to set at naught the award of the Tribunal and sought for an opportunity to put forth her case on merits. The Claims Tribunal having noticed the vehicle owner was so late for about five years, refused to show any indulgence, dismissed the I.A and that is how the said vehicle owner is before us, by way of this Civil Miscellaneous Appeal. 5. The learned counsel for the appellant would contend that the vehicle owner has no valid driving licence and the vehicle is unable to put the defence before the Claims Tribunal. That defecse, would change the course of the decision of the Tribunal. 6. The learned counsel for the appellant also submitted that the owner has insurance coverage with the second respondent and that has been completely overlooked by the Tribunal 7. The learned counsel for the appellant also submitted that much water has flown under the bridge since the decision made by the Tribunal there was much development on this aspect of law. Noticing the social security measure, the Courts have advocated a new principle of ''pay and recovery''. Because the vehicle owner has been set ex-parte, she is not in a position to place her version before the Claims Tribunal. 8. Noticing the social security measure, the Courts have advocated a new principle of ''pay and recovery''. Because the vehicle owner has been set ex-parte, she is not in a position to place her version before the Claims Tribunal. 8. On the other hand, the learned counsel for claimant/first respondent would contend that appreciating the evidence adduced, the Trial Court decided not to give opportunity to the appellant and sufficient cause has been shown by the appellant. 9. Similar line of arguments also has been advanced by the Insurance Company. The learned counsel for the Insurance Company also argued on the maintainability of the appeal. 10. I have anxiously considered the triangular submissions made before me by three Lawyers, in three dimensions and also considered the materials on record and the impugned order of the Tribunal. 11. Actually, the vehicle owner/appellant taken steps to set aside the exparte award. She says that she was not given opportunity. Of course, she was late in filing the application. It is about five years. But she says she has some arguable points. 12. I am of the view that delay may not allow to defeat justice. When there are points to be ponder over, let us not magnify those technical objections. Technicality should not stand in the way of dispensing justice. 13. In these kind of matters, the Court also must be pragmatic than pedantic. Counting each days of are all now outmoded. Now in this type of petitions, Courts have become broader and generous and become liberal. They also become strict as useless people are coming to Court and want to fight without any cause were not encouraged by the Courts. In such cases, even if the delay is short, they simply short out the applications. On the other hand, if they have some point to consider and its of some importance, a chance to adjudicate has been given even if the delay is sufficiently longer. 14. Now in this case, the argument with reference to liability of the insurance company based on the driving licence is urged by the vehicle owner. However, such a argument has not been placed before the Claims Tribunal, because the vehicle owner was set ex-parte. 14. Now in this case, the argument with reference to liability of the insurance company based on the driving licence is urged by the vehicle owner. However, such a argument has not been placed before the Claims Tribunal, because the vehicle owner was set ex-parte. Even if we give an opportunity to the appellant, the negligence issue has been concluded by the Tribunal and it had also assessed the damages on merits and then what remains is the contention of the company as to the exoneration from liability on the anvil of the driver not possessing a valid driving licence at the time of the accident. If that could be heard and considered in this appeal itself , it will advance the cause of justice. Otherwise, it will open one round of litigation and from Tribunal again to High Court. Ways and means to be found out to arrest proliferation of litigation. Now the form of remedy chosen by the vehicle owner is appeal. Interestingly, the award of the Tribunal is also before us. Entire material is before us. All the three counsels placed their cards. In this situation, the question of liability even if could be decided here itself. All the learned counsels also argued for such a course. Let us not drive the parties to the drudgery of further litigations, which is time consuming. The reasons are not far to seek. 15. Now having cleared the path, itself we will decode the matter here itself. 16. The appellant is the vehicle owner. The vehicle has been insured with the second respondent. The Tribunal answered the question of negligence and also determined the compensation. The basis of Tribunal for exonerating the insurance company is that at that time when the accident took place, the driver of the vehicle owner was not having a valid driving licence. This aspect has not been disputed by the appellant and also by the claimants and could not be by the Insurance Company. 17. The contract of insurance as between the vehicle owner/insured and the insurer/insurance company is a bi-party, but it is a special contract. It is intended for the benefit of an unseen, unknown third party, namely, road accident victims. It introduces the concept of indemnification, namely, in case the vehicle owner/insured is liable to pay compensation to the third parties, the insurer/company will pay on behalf of its insured. 18. It is intended for the benefit of an unseen, unknown third party, namely, road accident victims. It introduces the concept of indemnification, namely, in case the vehicle owner/insured is liable to pay compensation to the third parties, the insurer/company will pay on behalf of its insured. 18. The violation of terms and conditions of policy as in the present case is the driver of the vehicle was then not having a valid driving licence. It is a matter between the insurer and the insured. The road user, who is a third party is not concerned with that. Actually, in a contract of insurance is intended for the benefit of such third parties and that is why it is to cover third party risk. 19. Now because of the negligence of her driver, the appellant is liable. That is the condition precedent as per the contract of insurance to make the insurer to pay compensation. Now the policy coverage is in force, premium is in force. Now on account of not holding a valid driving licence, the insurer cannot be allowed to avoid its liability/duties to indemnify the insured under the contract of insurance. 20. In such circumstances, as per the decision in NANJAPPAN V. ORIENTAL INSURANCE CO. LTD. AND OTHERS ( 2003 (1) L.W. 77 ) to invoke the principle of ''pay and recover''. 21. In the result, the award passed by the Motor Accident Claims Tribunal(Sub-Judge), Pudukkottai in M.C.O.P.No.335 of 1998 dated 22.7.2005, is modified. The second respondent/Insurance Company shall deposit the entire award amount together with interest at 12% p.a. from the date of claim petition till the date of deposit and cost, less amount already deposited by the appellant, within a period of four weeks from the date of receipt of a copy of this Judgement. On proper application, being filed by the first respondent, the entire amount, less amount if any already withdrawn shall be paid to the first respondent/claimant. On such deposit, the Second respondent/insurance company is entitled to proceed in execution as against the vehicle owner, the amount deposited in excess of the amount deposited by the appellant without filing a separate suit. The company will have all the remedies available under Order 21 C.P.C. It can seek remedy as against the offending vehicle. On its request, the concerned Regional Transport Officer also shall render necessary assistance. 22. The company will have all the remedies available under Order 21 C.P.C. It can seek remedy as against the offending vehicle. On its request, the concerned Regional Transport Officer also shall render necessary assistance. 22. Accordingly, the Civil Miscellaneous Appeal is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.