Partly allowed

M.Sundaresan v. Pandiaraja

Madras HC9 Jan 2024CMA(MD)/1413/2012

Case brief

AI extract

What is this about?

The appellant claimed compensation for injuries sustained in a motor accident. The Tribunal awarded Rs. 10,000 to the claimant against the vehicle owner, exonerating the insurer due to a missing fitness badge. The High Court held the insurer liable to pay first and recover from the owner, drawing on precedents about pay-and-recovery mechanisms.

What did the court decide?

The second respondent (insurer) is directed to pay Rs. 10,000 with interest to the claimant and recover the amount from the first respondent (vehicle owner) within two months.

M.Sundaresan Vs Pandiaraja — Contract and Commercial Disputes | Madras HC (2024)

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C.M.A.(MD)No.1413 of 2012

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated: 09.01.2024

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CORAM:

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THE HON'BLE MR.JUSTICE P. DHANABAL

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C.M.A.(MD)No.1413 of 2012

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M.Sundaresan ..Appellant/Claimant

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.vs.

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Pandiaraja

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The Divisional Manager Oriental Insurance Company P.K.S.A. Arumugam Road, Sivakasi, Virudhunagar District .. Respondents/ Respondents

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Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 to call for the records from the Motor Accident Claims Tribunal(Sub Court) Sivakasi dated 14.12.2011 made in M.C.O.P.No.21 of 2007 and enhance the award of compensation amount by allowing this Civil Miscellaneous Appeal.

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For Appellant : Mr.M.Ashok Kumar For R1 : Dismissed For R2 : Mr.S.Veeranasamy

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JUDGMENT

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This Civil Miscellaneous Appeal has been filed as against the order

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passed in M.C.O.P.No.21 of 2007 on the file of the Motor Accident Claims Tribunal, Sub ordinate Court, Sivakasi, wherein the appellant being a claimant

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C.M.A.(MD)No.1413 of 2012

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has filed petition as against the respondents herein claiming compensation of Rs.30,000/-.

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The Tribunal has awarded a sum of Rs.10,000/- and directed the first respondent to pay the award amount with interest @ 7.5% per annum from the date of petition till realization of the amount and dismissed the petition as against the second respondent/Insurance company.

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Being aggrieved by the above said order of the Tribunal the petitioner has filed this Civil Miscellaneous Appeal.

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For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking in the Tribunal.

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5 . The brief facts of the petition averments are: On 04.12.2006 at

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about 5.00 pm., when the petitioner was riding in a two wheeler bearing Reg. No. TN 67 U 9775 from Vembakottai to Sivakasi main road, at that time pick up van bearing Reg.No. TN67 L 1557 which belongs to the first respondent came

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in a rash and negligent manner and dashed against the two wheeler, due to which the petitioner sustained injuries all over the body. The accident took place due to the rash and negligent driving of the first respondent/driver. At the

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C.M.A.(MD)No.1413 of 2012

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time of accident the first respondent vehicle was insured with the second

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respondent, hence both the respondents are liable to pay the award amount.

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6 . The brief averments in the counter filed by the second

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respondent are : The petition is not maintainable either in law or facts . The occurrence was not took place as alleged in the petition. The accident took place due to rash and negligence on the part of the rider of the two wheeler and not occurred due to the negligence on the part of the driver of the first respondent. There is a delay of seven days in registering the First Information Report and the first respondent driver had no valid license to ply the load auto and thereby violated the condition of policy hence the second respondent is not liable to pay the compensation to the petitioner and hence prayed to dismiss the petition.

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Before the Tribunal, on the side of the petitioner they examined P.W.1 and marked exhibits Exs.P.1 to Exs.P8 and Court documents were marked as Ex.C.1 to C.3. On the side of the respondents they have examined two witnesses as R.W.1 and R.W.2 and no documents were marked. After evaluating the oral and documentary evidence adduced on either side the Tribunal has awarded a sum of Rs.10,000/- towards compensation along with interest @ 7.5% per annum and directed the first respondent to pay the said

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C.M.A.(MD)No.1413 of 2012

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amount and the petition as against the second respondent/ Insurance company was dismissed.

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Aggrieved over by the order of the Tribunal the petitioner has preferred this Civil Miscellaneous Appeal on various grounds.

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The learned counsel appearing for the appellant would contend that the accident took place due to the rash and negligent driving of the driver of the first respondent and the Tribunal also correctly held the driver of the first respondent is liable for the accident but exonerated the insurance company from paying the award amount. The first respondent vehicle was duly insured with the second respondent, thereby the second respondent is liable to pay the award amount. However the Tribunal without considering the same erroneously passed award as against the owner of the vehicle and exonerated the insurance company from the liability. The driver of the first respondent has license to drive the Light Motor Vehicle on the date of accident but he did not have badge for the load auto. Merely because of non holding of the badge, the Insurance company cannot escape from its liability and the insurance company is liable to settle the amount to the appellant/petitioner and it can recover the award amount from the owner of the vehicle ie., the first respondent /first respondent. The award passed by the Tribunal is meagre

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C.M.A.(MD)No.1413 of 2012

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amount and the Tribunal ought to have awarded fair compensation, therefore the award passed by the Tribunal is liable to be set aside. Further the learned counsel appearing for the appellant relied on the judgment of this Court in the

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case of National Insurance Co.Ltd., Nagercoil .vs. Therasammal and others reported in 2016(1)TNMAC 119.

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The learned counsel appearing for the second respondent would contend that the first respondent vehicle was insured with the second respondent , however the driver of the first respondent had no valid badge to ply commercial vehicle and thereby violated the condition of policy, hence the trial Court has correctly exonerated the insurance company from the liability. Since the driver of the first respondent had no valid license question of pay recovery not would arise. Therefore, the order passed by the Tribunal is in order and this appeal is liable to be dismissed.

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This Court after hearing both sides and upon perusing the documents including the order of the Tribunal the point for determination in this appeal is:

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i) Whether the appeal is liable to be allowed or not?

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C.M.A.(MD)No.1413 of 2012

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In this case there is no dispute with regard to the negligence on

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the part of driver of the first respondent. The respondents have also not denied the negligence on the part of the driver of the first respondent and the appeal has been preferred as against the quantum of compensation awarded by the Tribunal as well as the liability of the Insurance company. According the appellant/ petitioner, the vehicle of the first respondent/first respondent was insured with the second respondent/second respondent on the date of accident and the driver of the first respondent /first respondent had license to ply the LMV vehicle. According to the second respondent /second respondent though the driver of the first respondent/ first respondent had LMV license for transport vehicle he has no badge, since the first respondent vehicle was load auto. In this context the learned counsel appearing for the petitioner relied on the judgment of this Court in the case of National Insurance Co.Ltd.,

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Nagercoil .vs. Therasammal and others reported in 2016(1)TNMAC

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119, wherein it is held as follows:

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“2.It is well settled that the Apex Court and this Court in a catena of the following decisions, have consistently taken a view that the insurer shall pay the compensation and thereafter, they shall recover the amount from the vehicle owner, whenever the compensation was ordered on the ground that the driver did not posses valid license. The decisions are as follows:

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(i)2011(1) TN MAC 641 (SC) - Jawahar Singh Vs. Bala Jain

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(ii)(2013) 7 Supreme Court Cases 62 - S.Iyyapan Vs. United India Insurance Co. Ltd.

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(iii)2010(2) TN MAC 388 (DB) - United India Insurance Company Limited Vs. V.Vijayakumar

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C.M.A.(MD)No.1413 of 2012

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(iv)2010(2) TN MAC 542 (DB) - Bajaj Allianz General Insurance Company Ltd. Vs. P.Manimozhi (v)2009(2) TN MAC 103 (DB) United India Insurance Co. Ltd. Vs.S.Saravanan & another (DB)

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3.In view of the categorical pronouncement of this Court and the Apex Court as referred to above, the appeal is disposed of by modifying the order of the Tribunal by directing the appellant to pay compensation to the claimant and thereafter recover the same from the insured. The claimant is permitted to withdraw the entire amount deposited by the appellant pursuant to the order dated 16.12.2009 of the court. Consequently, connected Miscellaneous Petitions are closed. No costs”.

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On careful perusal of the above said judgment, it is clear that if the driver of the vehicle involved in the accident has no valid license this Court can order for pay and recovery. In the case on hand also, the driver of the first respondent had license but he did not possess badge to ply the commercial vehicle. Therefore in view of the above said judgement this Court is inclined to order for pay and recovery, thereby it is appropriate to direct the second respondent/insurance company to pay the award amount to the petitioner and thereafter the same can be recovered from the first respondent. As far as quantum is concerned considering the nature of injuries, the Tribunal has awarded reasonable amount of Rs.10,000/- and thereby this Court has no warrant to interfere with the quantum of award passed by the Tribunal.

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In view of the above discussions, this Civil Miscellaneous Appeal is partly allowed with cost. Therefore the award passed by the Tribunal is modified to the effect that the second respondent is hereby directed to pay the

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C.M.A.(MD)No.1413 of 2012

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compensation amount of Rs.10,000/-with interest as ordered by the Tribunal to the petitioner and thereafter the second respondent can recover the same from the first respondent. The second respondent is directed to deposit the said amount within a period of two months from the date of this judgment and the claimant is permitted to withdraw the entire amount by filing appropriate application before the Tribunal.

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09.01.2024

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NCC : Yes/No Index : Yes/No Internet: Yes/No aav

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To:

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The Motor Accident Claims Tribunal(Sub Court) Sivakasi .

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2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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C.M.A.(MD)No.1413 of 2012

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P. DHANABAL,J.

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aav

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C.M.A.(MD)No.1413 of 2012

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09.01.2024

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M.Sundaresan v. Pandiaraja

Case brief

What is this about?

What did the court decide?

M.Sundaresan v. Pandiaraja

Case brief

What is this about?

What did the court decide?

What the court decided

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