1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.07.2011 CORAM : THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A.(MD)No.736 of 2011 The Manager, Iffco Tokyo General Insurance Company Ltd., 82, Preetham Plaza, I Floor, Chandraganthi Nagar, Ponmani, Bye Pass, Madurai - 625 010. ... Appellant/2nd respondent Vs. 1.Selvam 2.Minor Arun Kumar 3.Minor Ashok Kumar ... Respondents 1 to 3/Petitioners (rep. by the respondents 2 & 3 are represented by their father and guardian Selvam, 1st respondent) 4.Suresh 5.Natrayasamy 6.The Manager, Sozhamandalam M.S.General Insurance Co. Ltd., I Floor, Anna Plaza No.5, Kovai Road, Opp. AKC Petrol Bunk, Karur -2. ... Respondents 4 to 6/4th respondent PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 04.02.2011 made in M.C.O.P.No.438 of 2009 on the file of the Motor Accident Claims Tribunal/Additional District cum Fast Track Court, Dindigul. For appellant : Mr.S.Srinivasa Raghavan JUDGMENT This appeal is, on consent, disposed of at the admission stage. 2. This appeal is filed by the second respondent/insurer against the award of compensation of Rs.5,95,000/- made in favour of the claimants/respondents 1 to 3 for the death of one Dhanam in the accident occurred at 10.15 p.m. on 31.05.2009 near Gopalpatti Karuppu Kovil on Dindigul to Natham Main Road due to head on collusion of two autos owned by the respondents 1 & 3 and insured with the respondents 2 & 4. 3.The tribunal after due analaysis of the materials placed before the same, found that the driver of the first respondent's auto is responsible for the accident and that the auto driver was having only licence to drive Light Motor Vehicle and the auto in https://hcservices.ecourts.gov.in/hcservices/ 2 question was used for transport purpose and the auto driver drove the vehicle without any badge or endorsement to drive particular type of vehicle, as such, he is not duly licenced to drive the vehicle and on the basis of such finding, directed the award of compensation to be satisfied by the second respondent/insurer on behalf of the first respondent/insured at the first instance with right given to the second respondent/insurer to recover the same from the insured by initiating execution proceedings in the same claim petition. 4.The present appeal is filed by the insurer against the direction for payment made against the insurer by applying the doctrine of pay and recovery theory. It is argued by the learned counsel for the appellant that the act of the first respondent/owner in permitting his driver to drive the vehicle at the time of the accident without proper and effective driving licence amounts to basic and fundamental breach of terms and conditions of the policy of insurance and on the strength of exclusion clause in the policy of insurance, the insurer ought to have been totally exonerated from the liability to answer the award and ought not to have been directed to, answer the award. It is his contention that pay and recovery principle is not applicable to the instant case. 5.The main point arises for consideration herein is as to whether the direction issued to the insurer for payment of award with right given to the same to recover it from the insured on the ground that the driver of the offending vehicle was on the date of the accident not duly licenced to drive the vehicle in question and the licence possessed by him was only to drive light motor non transport vehicle without any endorsement to drive transport vehicle is sustainable? The same is already dealt with by the larger bench of the Supreme court in the judgment reported in 2004 (2) LW 744 (National Insurance Company Limited Vs. Swaran Singh and others) and the same is referred to by the Supreme Court in the subsequent judgments and also followed by our High Court. 6.The Hon'ble Supreme court in the batch of cases referred to above, had an occasion to deal with the question of law relating to Section 149(2)(a)(ii) vis-'-vis the proviso to Sub-Sections (4) and (5) of the Motor Vehicles Act. In all these cases, the Insurance Company raised the defence in terms of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 relating to non-possession of driving licence by the driver or possession of fake licence, expired licence, licence to drive for one class and description of vehicle and drivers having learner's licence and not duly licenced etc. The Hon'ble Supreme Court having detailed analysis of factual and legal aspects in respect of each defence so raised under separate caption has in para 110 summarised its findings on various issues. For better appreciation, para 110 of the Hon'ble Apex Court judgment is extracted hereunder : "(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor https://hcservices.ecourts.gov.in/hcservices/ 3 vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act. (vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims https://hcservices.ecourts.gov.in/hcservices/ 4 in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 7.The Hon'ble Supreme Court has laid down general principles in Clauses (iii) to (viii) as referred to above in respect of breach of policy condition and the circumstances under which the insurance company can avoid its liability and the factors to be proved for doing so and the mode of proving the same. In terms of which, the insurer, in order to avoid their liability, is bound to prove the first act of breach of policy condition by the insured, such as disqualification of the driver to drive the particular type of https://hcservices.ecourts.gov.in/hcservices/ 5 vehicle or invalid driving licence etc. as contained in sub section 2(a)(ii) of Section 149. But the same by itself will not amount to defence to avoid its liability and the insurer has to further prove that the insured was in any manner guilty of negligence or responsible for breach of policy condition by having failed to take reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicle by duly licensed driver or by one who was not disqualified to drive the vehicle at the relevant point of time and to further prove that the breach is so fundamental so as to contribute to the cause of the accident. In this case no such proof is available. The Hon'ble Supreme Court has under given situation by duly interpreting sub sections 2, 4 and 5 of Section 149, observed that whenever the insurer seeks to raise the defence available under Section 149(2)(a)(ii) of the Act against the insured in respect of the claim made by the third party, the insurer shall be so long as the policy is in force, liable to indemnify the insured and can have recourse under proviso to sub section 4 of Section 149, which enables the insurer to recover from the insured any sum paid by the insurer in or towards the discharge of liability or such person covered by the policy by virtue of Section 149(2) by invoking the principle of 'pay and recovery' and the Tribunal can take recourse to the same and can direct the insurer to at the first instance satisfy the award and then to get reimbursed by the insured for the compensation and other amounts, which it is compelled to pay to the third party under the award of the Tribunal. 8.That being the factual and legal position, the same is squarely applicable to the facts of the present case, wherein, the driver has valid license, but no effective endorsement to drive particular type of vehicle, as such, the insurer cannot escape from its liability to satisfy the award. Hence, the Tribunal's direction for payment issued against the insurer with right given to the insurer to proceed against the insured for recovery of the same, deserves no interference by this Court. 9.In the result, the appeal stands dismissed and the award dated 04.02.2011 made in M.C.O.P.No.438 of 2009 on the file of the Motor Accident Claims Tribunal/Additional District cum Fast Track Court, Dindigul is confirmed. Consequently, connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar(Crl.side) /True Copy/ Sub Assistant Registrar To 1.The Motor Accident Claims Tribunal/Additional District cum Fast Track Court, Dindigul. +1cc to Mr.S.Srinivasa Raghavan, Advocate in SR.21217 C.M.A.(MD)No.736 of 2011 01.07.2011 gcg PBK :05.06.2012 ::5P-3C:: https://hcservices.ecourts.gov.in/hcservices/