Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 428 (MAD)

National Insurance Company Limited v. M. Sundar

2019-02-13

J.NISHA BANU

body2019
JUDGMENT : 1. The present appeal has been filed by the appellant insurance company questioning the liability as well as the quantum. 2. As far as the liability is concerned, learned counsel for the appellant would contend that since the driver of the offending vehicle belongs to the 2nd respondent in both the appeals, did not possess a valid driving licence at the time of accident, the appellant is not liable to pay compensation. Learned counsel also disputed the quantum of compensation awarded under various heads. 3. Heard both sides and perused the records. 4. Perusal of record shows that on the aspect of liability, the appellant examined the Superintendent from the Motor Vehicles Inspectors' Office, Tiruchendur, as RW2 who deposed that the offending Auto bearing registration No.TN-69A-1762 was inspected on 20.09.2000 and the Motor Vehicle Inspector issued a check report stating that the driver of the said Auto namely, Shanmugam did not possess driving licence at the time of accident and based on that, the Regional Transport Officer, Thoothukudi, sent a notice dated 29.09.2000 to the 2nd respondent herein/owner of the offending Auto, as to why permit should not be suspended for 2 days for non possession of the driving licence by the driver. Thereafter, the 2nd respondent paid compounding fee of Rs.200/- for not carrying driving licence by the driver. During cross-examination, RW2 stated that he did not know whether the driver of the offending Auto obtained driving licence from other Regional Transport Offices and that no notice was issued from their office to the driver to produce his licence. RW2 has also marked Ex.R2-original file relating to the proceedings in respect of the driving licence of the driver of the offending Auto. The Tribunal held that non possession of driving licence by the driver of the Auto at the time of accident, is not proved by the appellant through the evidence of RW2. 5. It is further seen from the records that RW3 who is a Senior Assistant working under the appellant has stated that Ex.R4 notice was issued to the driver/Shanmugam to produce his licence which was received and acknowledged by him vide Ex.R5- Acknowledgment card and RW1-Investigator of the appellant company also sent notice to the 2nd respondent/owner of the vehicle to produce the driving licence of the driver which was also received and acknowledged by the 2nd respondent under Ex.R7. Despite receipt of the above notices, neither the driver nor the owner/2nd respondent appeared before the Tribunal and the 2nd respondent was set ex-parte before the Tribunal. Though arrest warrant was issued by the Court for arresting the 2nd respondent, the same was returned to the court stating that despite search, the 2nd respondent could not be secured. 6. Though the appellant proved that the driver of the offending vehicle did not possess driving licence at the time of accident by sending notices as stated above, the Tribunal did not order pay and recovery. It is well settled that even if the insurance company is able to discharge their burden that the driver of the offending vehicle did not possess a valid driving licence at the time of accident, the only remedy that can be given is pay and recovery, which remedy has not been given by the Tribunal in this case. In my considered opinion, since the appellant took steps to prove that the driver had no licence by sending the above notices, they should be granted pay and recovery. Accordingly, the finding of the Tribunal is hereby modified to the effect that the appellant shall pay compensation to the claimants in both the cases at the first instance and thereafter recover the same from the 2nd respondent/owner of the vehicle as per the following mode of recovery incorporated in the judgment of the Hon'ble Supreme Court in Oriental Insurance Co.Ltd., Vs. Shri Nanjappan and others, reported in I (2004) ACC 524 (SC):- “(7) ....For the purpose of recovering the compensation amount from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the insured was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. A notice shall be issued to the insured to furnish security for the entire amount. The offending vehicle shall be attached as a part of the security. If necessity arises, the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. The offending vehicle shall be attached as a part of the security. If necessity arises, the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property of the insured. ....” 7. As regards the quantum of compensation in CMA.773/14 is concerned, PW3 Doctor was examined in order to prove the nature of injuries sustained by the claimant. PW3 has stated that he examined the 1st respondent/claimant and he sustained fracture of right leg below knee and the right leg was bent and pus was discharging and that movement of right knee joint was restricted. PW3 has assessed the disability at 40% and issued Ex.P17-disability certificate. Though the claimant claimed that he earned Rs.7,500/- by manufacturing bricks and selling the same, in the absence of proof, the Tribunal fixed the notional income at Rs.1,500/- per month and awarded Rs.40,000/- towards 40% disability; Rs.3,000/- towards loss of income; Rs.7,000/- towards loss of earning capacity; Rs.7,000/- towards pain and sufferings; Rs.3,000/- towards nutrition and Rs. 800/- towards medical expenses as per Ex.P10. Altogether, the Tribunal awarded compensation of Rs.60,800/- with 9% interest per annum from the date of petition till the date of deposit. Considering the nature of injuries and date of accident, this Court is not inclined to interfere with the quantum. 8. So far as the quantum of compensation in CMA.774/14 is concerned, PW3 Doctor was examined in order to prove the nature of injuries sustained by the injured. PW3 has stated that he examined the 1st respondent/claimant and he sustained fracture of right thigh and pus was discharging and that movement of right knee joint was restricted, due to which, the claimant could not squat and walk for a long time. PW3 has assessed the disability at 50% and issued Ex.P18-disability certificate. Though the claimant claimed that he earned Rs.3,000/- by working as a Lorry Cleaner, in the absence of proof, the Tribunal fixed the notional income at Rs.1,500/- per month and awarded Rs.50,000/- towards 50% disability; Rs. PW3 has assessed the disability at 50% and issued Ex.P18-disability certificate. Though the claimant claimed that he earned Rs.3,000/- by working as a Lorry Cleaner, in the absence of proof, the Tribunal fixed the notional income at Rs.1,500/- per month and awarded Rs.50,000/- towards 50% disability; Rs. 3,000/- towards loss of income; Rs.7,000/- towards loss of earning capacity; Rs.7,000/- towards pain and sufferings; Rs.3,000/- towards nutrition and Rs.29,000/- towards medical expenses as per Exs.P14 and P15 series. Altogether, the Tribunal awarded compensation of Rs.99,000/- with 9% interest per annum from the date of petition till the date of deposit. Considering the nature of injuries and date of accident, this Court is not inclined to interfere with the quantum. 9. The appellant at the first instance is directed to deposit the compensation with interest as awarded by the Tribunal in both the cases, less the amount already deposited, if any, to the credit of the claim petitions within a period of four weeks from the date of receipt of a copy of this judgment and thereafter recover the same from the 2nd respondent as per the judgment in Nanjappan's case(supra). On such deposit, the 1st respondent in CMA.773/14 is permitted to withdraw the entire award amount with interest without filing formal permission petition before the Tribunal. Pending CMA. 774/14, the injured claimant N.Durai died and his wife and minor daughter were impleaded as R5 and R6 vide order dated 01.04.2014. Therefore, the respondents 5 and 6 in CMA.774/14 are entitled to the award amount in equal proportion with proportionate interest. The 5th respondent is permitted to withdraw her share with interest without filing formal permission petition before the Tribunal. The share of the 6th respondent/minor claimant shall be deposited in a Nationalised Bank till she attains majority. The interest accruing on such minor's deposit shall be permitted to be withdrawn by the 5th respondent/mother of minor once in three months directly from the bank. With the above modification, these Civil Miscellaneous Appeals are partly allowed. No costs.