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2017 DIGILAW 4254 (MAD)

Sundararajan v. Panjavarnam

2017-12-15

T.KRISHNAVALLI

body2017
JUDGMENT : 1. This Civil Miscellaneous Appeal has been filed by the appellant against the judgment and decree, dated 31.01.2008, in M.C.O.P.No. 136 of 2007, on the file of the Motor Accidents Claims Tribunal (Fast Track Court), Ramanathapuram. 2. For the sake of convenience, the parties are referred to according to their litigative status before the Tribunal. 3. It is a case of fatal accident which took place on 03.03.2006 at about 07.15 a.m. near Arochia Hotel on the Rameshwaram to Madurai Highways. 4. The case of the claimants is that on 03.03.2006 at about 07.15 a.m. near Arockia Hotel on the Rameshwaram to Madurai Highways the deceased was walking on the extreme left side of the road along with his brother. At that time the driver of the first respondent drove the vehicle bearing Registration No. TN-57-E-7531 Tractor in rash and negligent manner and dashed against the deceased and died at the spot. The criminal case was registered as against the driver of the first respondent. At the time of accident, the deceased was aged about 35 years and he was earning a sum of Rs.7,500/- per month by Head Cook in the Aprin Hotel. Hence, the legal heirs of the deceased/claimants filed an application in M.A.C.O.P.No.136 of 2007 on the file of the Motor Accidents Claims Tribunal (Fast Track Court), Ramanathapuram, seeking a sum of Rs.7,00,000/- as compensation. 5. Before the Tribunal, on the side of the claimants, two witnesses viz., P.Ws.1 and 2 were examined and five documents viz., Ex.P.1 to Ex.P.5 were marked and on the side of respondents, one witness viz., R.W.1 was examined and one document viz., Ex.R.1 was marked. 6. The Tribunal, after considering the pleadings, oral and documentary evidences and arguments of the counsel for the appellant and claimants and also appreciating the evidence on record, held that the accident occurred only, due to the rash and negligent driving of the driver of the offending vehicle and directed the appellant/Insurance Company to pay a compensation to the claimants and recover the same for the owner of the offending vehicle. 7. In this appeal the appellant questioned the responsibility for payment of compensation to the claimants. 8. 7. In this appeal the appellant questioned the responsibility for payment of compensation to the claimants. 8. The learned Counsel for the appellant/first respondent argued that the Insurance Company failed to establish its contention that the driver of the appellant was not having valid driving licence at the time of accident by way of adducing sufficient evidence and it is the duty of the insurer to prove that there is breach of policy on the part of the owner of the offending vehicle but the Insurance Company failed to discharge the burden of proving that the appellant has violated the conditions of the policy and without getting instruction from the appellant the learned counsel appearing for the owner of the offending vehicle made an endorsement that the driver of the offending vehicle had no valid driving licence and no single piece of evidence was available on record before the Tribunal to substantiate the said findings and when could found that the driver had not valid driving licence the Court can direct the Insurance company to pay the compensation to the claimants and then recover the same from the owner of the vehicle and hence the liability fastened on the appellant to pay the compensation to the claimants is not correct and prays that the Civil Miscellaneous Appeal may be allowed. 9. Citation referred by the appellant is as follows: 2017 (2) MWN (Civil) 279 10. 9. Citation referred by the appellant is as follows: 2017 (2) MWN (Civil) 279 10. On the other hand, the learned counsel for the 7th respondent/second respondent submitted that it is the duty of the owner to appoint qualified driver to drive his vehicle but he had given his vehicle to a person who is not having a valid driving licence and further before the Tribunal the Advocate appearing for the owner of the offending vehicle made an endorsement in the petition that at the time of accident the driver of the offending vehicle had no valid driving licence and the Advocate is an officer of Court through an agent to his party and he can take spot decision in the interest of his client and no foul play or motive attributed against lawyer and party cannot be allowed to take such a defence and hence the Tribunal ordered the owner of the vehicle to pay the compensation to the claimants and hence the responsibility fixed by the Tribunal is correct and prays that the Insurance Company is not liable to pay the compensation to the claimants. 11. In this case already on the second respondent side Notice to produce the licence was given to the owner of the vehicle but the counsel for the first respondent(owner of the offending vehicle) made an endorsement in the petition that the driver of the offending vehicle has no valid driving license at the time of accident. Hence, the Tribunal fixed the liability on the owner of the vehicle. 12. The learned counsel for R.1 to R.6/Claimants argued that when the driver of the offending vehicle had no driving licence then the Court can direct the Insurance Company to pay the compensation and recover the same from the owner. For that the learned counsel submitted a ruling reported in 2004 (3) SCC page 297. 13. Heard the learned counsel appearing on both sides and perused the materials available on record. 14. In this case the Insurance Company has not sent any notice to the driver of the vehicle to produce his driving licence. The Insurance Company only sent notice to the owner of the vehicle to produce the licence of the driver of the offending vehicle. No explanation was given on the appellant side why they have not sent notice to the driver directing to produce the licence. The Insurance Company only sent notice to the owner of the vehicle to produce the licence of the driver of the offending vehicle. No explanation was given on the appellant side why they have not sent notice to the driver directing to produce the licence. Hence on a careful perusal of records it reveals that at the time of accident the driver of the offending vehicle had no valid driving licence. As per the ruling reported in 2004 (3) SCC page 297 in the case of policy violation the Court can direct the Insurance Company to pay the compensation to the claimants and recover the same from the owner of the offending vehicle. 15. In this appeal only responsibility is questioned. Hence in respect of quantum the award passed by the Tribunal is confirmed and therefore, there is no infirmity in the award in respect of quantum passed by the Tribunal and the same does not require interference at the hands of this Court. 16. In the result, this Civil Miscellaneous Appeal is partly allowed and the award dated 31.01.2008, in M.C.O.P.No. 136 of 2007, on the file of the Motor Accidents Claims Tribunal (Fast Track Court), Ramanathapuram is modified that the Insurance Company is directed to pay the compensation to the claimants and recover the same from the owner of the offending vehicle. The appellant/Insurance Company is directed to deposit the entire award amount with accrued interests and costs, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the Insurance Company is at liberty to recover the award amount from the owner of the vehicle by filing appropriate proceedings before the Executing Court and the respondents No.1 to 4 are each entitled to a sum of Rs.1,50,000/- and the respondents No.5 and 6 are each entitled to a sum of Rs.50,000/- respectively along with proportionate interest and costs. The respondents No.1, 5 and 6 are permitted to withdraw their entire share amount along with proportionate interest and costs, without filing any formal petition before the Tribunal. The respondents No.1, 5 and 6 are permitted to withdraw their entire share amount along with proportionate interest and costs, without filing any formal petition before the Tribunal. Insofar as the share of minor claimants (i.e., respondents No.2 to 4) are concerned, the same shall be deposited in any one of the Nationalized Bank in renewable scheme till he attains majority and the mother and the natural guardian of the minor is permitted to withdraw interest directly from the Bank once in three months for the welfare of the minor. No costs. Consequently, the connected Miscellaneous Petition is closed.