[MADRAS HIGH COURT]
New India Assurance Company Limited, Tirunelveli
v
(1) M.Bhagavathy; (2) M.Kanthan (Minor); (3) M.Vanumamalai (Minor); (4) M.Muthu Soundari (Minor); (5) M.Kombiah (Minor); (6) Sundaram; (7) S.Ramasamy Nadar
E P. MURGESEN
24 Jun 2008
BENCH
E P. MURGESEN
CASES REFERRED TO
M/s. National Insurance Co. Ltd. v Baljit Kaur and others 2004 SC 57
United India Insurance Company Limited v Shri Gian Chand and Others 1997 SC 2747
Lal Chand v. Oriental Insurance Co. Ltd. [2006 (2) TNMAC 319]
CASE NO
C.M.A.No.316 of 2002
The Order of the Court was as follows :
1. This Civil Miscellaneous Appeal is directed against the judgment and decree dated 28.08.2001 made in MACT.OP No.607 of 1998 on the file of the Motor Accidents Claims Tribunal (II Additional District Judge) at Tirunelveli.
2. The brief facts arising out of this appeal are as under:-
On 17.06.1997, one Muthupandi was riding his new vehicle TVS-Champ along with his cousin Subramanian as pillion rider, from Kalakkad to Kottai from west to east direction towards the left side of the road to purchase certain articles. At about 3.30 p.m., a tractor bearing Registration No.TN-72-B-4502 along with a trailer bearing Registration No.TN-72-B-4503 came from behind in a rash and negligent manner and dashed against the TVS-Champ. As a result of the accident, the said Muthupandi died on his way to the hospital. The said tractor and trailer belonged to the seventh respondent which were insured with the appellant / Insurance Company. The respondents 1 to 6 / claimants are the legal heirs of the deceased. They claimed a compensation of Rs.4, 00, 000/- before the Tribunal. Before the Tribunal, on behalf of the claimants P.W.1 and P.W.2 were examined and Ex.P1 to Ex.P6 were marked. On behalf of the Insurance Company, R.W.1 to R.W.3 were examined and Ex.R1 to Ex.R7 were marked. On consideration of the materials and evidence on record, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the tractor and awarded a compensation of Rs.1, 99, 000/- with interest at 9% p.a. from the date of petition. Aggrieved by the award, the Insurance Company has filed the present appeal.
3. Learned counsel for the appellant / Insurance Company has submitted that the Tribunal has erred in fastening the liability on the Insurance Company without properly appreciating the oral and documentary evidence adduced by the appellant that the insured owner of the tractor had committed breach of policy condition by allowing a person without valid driving license to drive the insured vehicle at the time of accident. It is therefore submitted that the Insurance Company is not liable to pay any compensation.
4. Therefore, the only point for determination in this appeal is whether the insured had committed the breach of policy condition or not, as claimed by the appellant.
5. On the fateful day, i.e., on 17.06.1997, the deceased Muthupandi was driving his two-wheeler TVS-Champ and he died in the accident. The tractor and the trailer was driven by the seventh respondent's driver. A criminal case has been registered and the owner of the tractor had deposed that the said tractor and trailer was driven by one Mark, S/o Philippe and he admitted the offence. Ex.R1 is the Insurance Policy.
6. Counsel for the appellant / Insurance Company, referring to the judgment of the Supreme Court in the case of United India Insurance Co. Ltd. v. Gian Chand, 1997 SC 2747, argued that in case of breach of policy conditions, the Insurance Company is not liable to pay any compensation. In that case, the Supreme Court has pointed out that when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims to third party who might have suffered on account of vehicular accident caused by such unlicensed driver.
7. On the other hand, the counsel for the respondents 1 to 6 / claimants relied on the decision of the Supreme Court in the case of Lal Chand v. Oriental Insurance Co. Ltd., 2006 (2) TNMAC 319 (SC) and emphasised that even when the vehicle was driven by a person who did not possess license, the Insurance Company cannot escape liability.
8. In the case of Lal Chand v. Oriental Insurance Co. Ltd., 2006 (2) TNMAC 319 (SC) relied on by the counsel for the respondents 1 to 6 / claimants, the owner was examined as R.W.1 and his evidence was not discredited. So, the Hon'ble Supreme Court found that the Insurance Company is liable. But as far as the present case is concerned, the Insurance Company, has sent notices requesting the owner to produce the license. In the present case, the owner of the vehicle, has admitted that the letters sent by the Insurance Company to him and the driver were received by them. The owner admitted that the Insurance Company requested him to send the driver's license, but he did not sent any reply. The owner did not give any explanation for not replying to the letters sent by the Insurance Company. Furthermore, the owner, in his counter statement, had not stated that the driver of the tractor is having a valid driving license. On the other hand, in paragraph-6 of the counter statement filed on behalf of the seventh respondent herein, it is stated that the Insurance Company did not verify as to whether the driver was having any license to drive the vehicle. The owner of the vehicle was also not prepared to state in the counter statement that the driver was having license at the time of accident. On the other hand, he blamed the Insurance Company and stated that the Insurance Company ought to have verified that the driver of the tractor was having a valid driving license or not.
9. On behalf of the Insurance Company, R.W.1-Velappa Pillai was examined, who is the Administrative Officer of the Insurance Company. The evidence of R.W.1 would show that he requested the owner of the tractor to send the driving license, but the owner did not send any reply. R.W.1 also deposed that an Investigator was appointed and he had given a report, which is Ex.R6. The Investigator has been examined as R.W.2. His evidence would show that the owner and driver tried to avoid his request number of times. This again would go to show that the Insurance Company has taken steps to prove that the driver of the tractor was not having a valid driving license on the date of accident. If really, the driver was having licence, nothing prevented him to produce the same. Though it is claimed by the owner of the tractor that the license was taken in Bombay, he has not taken any steps to produce the relevant documents from Bombay to show that the driver of the tractor was having license. Even the driver of the tractor was not examined. This all would go to show that the owner was aware that his driver was not having license and he has committed breach of the policy intentionally.
10. Since the owner of the vehicle had committed a breach of the policy intentionally, the Insurance Company cannot be held liable for the amount claimed by the claimants. It is established satisfactorily that the driver was not having the driving license and the owner has committed breach of the policy conditions. # Hence the Insurance Company cannot be held liable for payment of compensation.
11. At this juncture, it is submitted by the learned counsel for the appellant / Insurance Company that the Insurance Company had already deposited Rs.25, 000/- at the time of filing of this appeal and Rs.2, 48, 386/- on 15.03.2002 as per the order of this Court and 50% amount was withdrawn by the claimants on 16.02.2005. Further, the counsel pointed out that, in the case of National Insurance Co. Ltd. v. Baljit Kaur, 2004 SC 57, the Supreme Court has held that if the award was satisfied by the Insurance Company, it can initiate proceedings before the Executing Court as if the dispute between the insurer and owner was the subject matter of determination. Applying the principles enunciated in the Supreme Court judgment cited supra, I direct that the Insurance Company is at liberty to initiate a proceeding before the Executing Court to recover the amount from the owner of the vehicle.
12. With the above observation, the Civil Miscellaneous Appeal is allowed. No costs.
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