Allowed

The New India Assurance Co. Ltd. v. Prabhu

Madras HC8 Jan 2024CMA/3673/2021

Case brief

AI extract

What is this about?

The High Court allowed the Civil Miscellaneous Appeal filed by the insurance company. It held that while the driver lacked a valid license, the pay and recover principle applies to third-party injuries. The insurer must pay the tribunal's award first and subsequently recover it from the vehicle owner.

What did the court decide?

Appellant directed to pay the compensation amount awarded by the Tribunal and recover it from the first respondent, the vehicle owner.

The New India Assurance Co. Ltd. Vs Prabhu — Motor Accident Claims | Madras HC (2024)

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C.M.A. No. 3673 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 08.01.2024

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CORAM:

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THE HONOURABLE MR. JUSTICE K. RAJASEKAR

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Civil Miscellaneous Appeal No. 3673 of 2021 and C.M.P.No.21565 of 2021

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The New India Assurance Company Limited, (Policy Issuing Office at Hasthampatti No.118, Gandhi Road, North Branch) Divisional Office, Sethukrishna Trade Centre, Gugai, Salem-6. ... Appellant / Petitioner

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Vs.

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Prabhu

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Manickam ... Respondents / Respondents

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Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Award and Decree dated 01.02.2021 passed in M.C.O.P. No.2131 of 2017 on the file of the Motor Accident Claims Tribunal, Special Sub Court No.I, Salem.

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C.M.A. No. 3673 of 2021

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JUDGMENT

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This Civil Miscellaneous Appeal has been filed by the Insurance Company challenging the liability fixed on them to pay the compensation for the injuries sustained by the claimant herein, who is the insurer of the appellant herein in the award passed in M.C.O.P.No.2131 of 2017, on the file of the Motor Accidents Claims Tribunal, Special Sub Court, Krishnagiri.

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The parties are referred to hereunder according to their litigative status and ranking before the Tribunal.

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The case of the claimant in brief is that on 17.11.2017 at

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about 10.00 p.m., the petitioner was riding his two-wheeler bearing Registration No.TN 30 T 8078 while he reached near Radha Thottam on the Mettu Udaiyarpalayam Road, a Tractor bearing Registration No.TN 77 J 4798 came in the opposite direction with rash and negligent manner and hit the two-wheeler resulting which, the claimant sustained severe injuries. Immediately he was admitted into Salem Government Hospital for treatment and thereafter he was shifted into Universal Hospital, Salem for better

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C.M.A. No. 3673 of 2021

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treatment and after treatment he has come forward with the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.5,00,000/-.

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The point raised for consideration in this appeal is that whether the insurance company is liable to pay the compensation when the driver of the Tractor, who is the tortfeasor is not having valid driving licence. As held by the Apex Court in National Insurance Company Ltd., vs. Swaran Singh & Ors [2004 (3) SCC 297] when the driver of the offending vehicle i.e., the tortfeasor is not having valid driving licence to drive the vehicle and the injured is a third party, the course open to the Tribunal at the time of awarding compensation is adopting the principles of pay and recover.

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In this case, admittedly, the injured in this case is a third

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party while he was riding his two wheeler on the Mettu Udaiyarpalayam Road Road, at the Yethapur, the driver of the first respondent Tractor came in the opposite direction in rash and negligent manner and hit on him, which resulted in causing severe injuries.

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C.M.A. No. 3673 of 2021

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The Tribunal after considering the evidences placed on record has held that the driver of the Tractor is a tortfeasor. However, the Tribunal has not considered the evidences placed on record on the side of the Insurance Company that there is a violation of policy conditions i.e., the driver was not having valid driving license at the time of accident. The official of Regional Transport Officer was also examined as R.W.1 and he has categorically given evidence that the tortfeasor herein was having only learners licence and was not qualified to drive the Tractor independently.

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After accepting the evidence of the Insurance Company that the tortfeasor was not having valid driving licence, directing the Insurance Company to indemnify the first respondent is not legal. In catena of Judgments it has been held that if a person who has not having valid driving licence is a tortfeasor, then the Insurance Company need not indemnify the owner of the vehicle since it was both the statutory violation as well as the policy conditions.

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C.M.A. No. 3673 of 2021

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However, as stated supra, it is settled that if the injured is

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a third party, adoption of principle of pay and recover is to be followed. Accordingly, the Civil Miscellaneous Appeal is allowed. The Insurance company is directed to pay the compensation amount as awarded by the Tribunal and recover the same from the first respondent, who is the owner of the vehicle. In other aspects the award of the Tribunal shall stand confirmed. There shall be no order as to costs in the present appeal. Consequently, the connected miscellaneous petition is closed.

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08.01.2024

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ssi Index:Yes/No Speaking Order:Yes/No Neutral Citation Case: Yes/No

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To:

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The Special Sub Judge No.I, Motor Accident Claims Tribunal, Salem.

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The Section Officer, V.R.Section, High Court, Chennai.

K. RAJASEKAR, J.

ssi

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C.M.A. No. 3673 of 2021

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C.M.A. No. 3673 of 2021

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The New India Assurance Co. Ltd. v. Prabhu

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Prabhu

Case brief

What is this about?

What did the court decide?

What the court decided

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