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2018 DIGILAW 3571 (MAD)

Oriental Insurance Company Limited v. Milton

2018-10-05

V.M.VELUMANI

body2018
JUDGMENT V.M. Velumani, J. These Civil Miscellaneous Appeals have been filed to set aside the award of Rs. 15,000/- (Rupees Fifteen Thousand Only) and Rs. 50,800/- (Rupees Fifty Thousand Eight Hundred Only) passed in M.C.O.P.Nos.767 and 763/2005 respectively dated 10.09.2008, on the file of the Motor Accident Claims Tribunal cum Principal Sub Judge, Tirunelveli. 2. Both the appeals are filed by the appellant, challenging the award passed in M.C.O.P.Nos.767 and 763 of 2005. The first respondent in both appeals have filed the said claim petitions, claiming a sum of Rs. 30,000/- (Rupees Thirty Thousand Only) and Rs. 3,00,000/- (Rupees Three Lakhs Only) respectively as compensation for the injuries sustained by them in the accident that took place on 30.04.2005. 3. The second respondent herein remained ex-parte before the Tribunal. 4. Before the Tribunal, the first respondent in C.M.A.(MD)No.632 of 2013 examined himself as P.W.1 and the first respondent in C.M.A.(MD)No.1628 of 2010 examind himself as P.W.2, Dr.Ramaguru was examined as P.W.3 and filed 10 documents and the same were marked as Exs.P1 to P10. The second respondent herein examined as R.W.1, Baluchamy was examined as R.W.2 and one document was marked as Ex.R1. 5. The Tribunal considering the pleadings, both oral and documentary evidence let in by both the parties, held that the accident occurred only due to rash and negligent driving by the second respondent herein and considering the evidence of claimants and the evidence of Doctor examined on their behalf, awarded a sum of Rs. 15,000/- and Rs. 50,800/- as compensation to the first respondent in both appeals respectively and held that the second respondent did not possess driving licence to drive two wheeler with gear and directed the appellant to pay compensation at the first instance and recover the same from the second respondent. 6. Aggrieved by the said award, the appellant has come out with the present appeals. 7. Though notice has been served on the first respondent in C.M.A.(MD)No.632 of 2013 and the second respondent in both appeals and their names are printed in the cause list, there is no representation either in person or through counsel. 8. Heard the learned counsel appearing for the appellant in both appeals and the first respondent in C.M.A.(MD)No.1628 of 2010. 9. Though notice has been served on the first respondent in C.M.A.(MD)No.632 of 2013 and the second respondent in both appeals and their names are printed in the cause list, there is no representation either in person or through counsel. 8. Heard the learned counsel appearing for the appellant in both appeals and the first respondent in C.M.A.(MD)No.1628 of 2010. 9. The contention of the learned counsel appearing for the appellant that the Tribunal erred in directing the appellant to pay compensation at the first instance and recover the same from the second respondent, when admittedly, the second respondent did not possess driving licence, is without merits The second respondent in his evidence has stated that he did not possess driving licence to drive the motor cycle with gear. It is well settled that the failure to get endorsement for driving a particular type of vehicle will not exonerate the Insurance Company from its liability to pay compensation. In view of the same, there is no error in ordering pay and recovery. 10. From the materials on record, it is seen that the Tribunal considering the materials on record, held that the accident occurred only due to rash and negligent driving by the second respondent. The Tribunal considering the evidence of Doctor and claimants, awarded compensation and ordered pay and recovery. The claimants have let in evidence and marked documents to substantiate the fact that the accident had occurred only due to rash and negligent driving by the second respondent. The second respondent as R.W.1 has deposed that the accident occurred only due to rash and negligent driving by the claimants. The Tribunal considering the pleadings and documents marked before the Tribunal, held that the accident occurred only due to rash and negligent driving by the second respondent. The Tribunal has given cogent and valid reasons. In view of the same, there is no error in the order of pay and recovery and no reason to interfere with the said award. 11. In the result, both the Civil Miscellaneous Appeals are dismissed. 12. The Tribunal has given cogent and valid reasons. In view of the same, there is no error in the order of pay and recovery and no reason to interfere with the said award. 11. In the result, both the Civil Miscellaneous Appeals are dismissed. 12. The appellant/Insurance Company is directed to deposit the entire award amount to the credit of M.C.O.P.Nos.767 and 763 of 2005, on the file of the Motor Accidents Claims Tribunal/Principal Subordinate Judge, Tirunelveli, less the amount already deposited, if any, along with interest and costs, within a period of six weeks from the date of receipt of a copy of this common judgment and thereafter, the appellant/Insurance Company is entitled to recover the same from the second respondent by way of Execution Petition, without actually filing a suit as held by the Hon'ble Apex Court in the judgment reported in (Oriental Insurance Co., Ltd., vs. Shri Nanjappan and Others, (2004) 2 CTC 464). On such deposit, the first respondent in both the appeals are permitted to withdraw the said award amount, less the amount, if any, already withdrawn, by making necessary application before the Tribunal. No costs. Consequently, connected miscellaneous petitions are closed.