IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.1165 of 2009 & M.P.No.1 of 2009 Bajaj Alliance General Insurance Co. Ltd., No.25/26, Prince Towers, IV Floor, College Road, Nungambakkam, Chennai – 6. ... Appellant(2nd Respondent) Vs. 1.Sivagurunathan 2.Thaiyalnayaki ... Ist & 2nd Respondent/Cliamnts 3.P.M.Mansoor ... 3rd Respondents/Ist Respondent Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 29.11.2008 made in M.C.O.P.No.350 of 2008 on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions Court (FTC), Ariyalur. For Appellant : Mr.S.Arun Kumar For Respondents: Mr.M.Selvam (R-1 and R-2) J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant / Bajaj Alliance General Insurance Company Limited against the award and decree passed in M.C.O.P.No.350 of 2008, dated 29.11.2008, on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions Court (FTC), Ariyalur. 2.The short facts of the case are as follows:- On 22.05.2005 at around 09.00 a.m., the claimants were walking on the Udaiyankudi south street at Kattumannarkudi, when at that time the first respondent's tempo mini-door vehicle bearing Registration No.TN31-K-1896 came at high speed and in a rash and negligent manner and dashed against the claimants' daughter Punitha Meenakshi, as a result she had sustained grievous injuries, immediately after first aid, she was referred to Pondicherry Government Hospital, wherein she had expired since the treatment proved a failure, therefore, the claimants filed the claim petition for compensation a sum of Rs.7,00,000/- with interest. https://hcservices.ecourts.gov.in/hcservices/ 3.The second respondent had filed a counter statement and resisted the claim petition. At the time of the accident, the driver was not possessing a valid driving licence, as such there is violation of Insurance Policy. The age, income and occupation of the deceased are denied besides the claim amount is excessive. 4.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; " (i)Whether the accident had taken place due to rash and negligent act of the driver of the temp mini-door vehicle bearing Registration No.TN31-K-1896? (ii)Whether the claimants are entitled to receive compensation? If so, what is the quantum of compensation?" 5.On the side of the claimants, one witness was examined and three documents marked which are as follows: First Information Report, Postmortem Certificate, Legal-heir certificate . On the side of the respondent two witnesses had been examined and four documents were marked. 6.PW1 had adduced evidence stating that the second claimant is his wife, the deceased their daughter, aged about 14 years and she was studying in Class X. We were proceeding on the Udaiyankudi south street at Kattumannarkudi on 22.05.2005 at around 09.00 am., when at that point of time the first respondent's vehicle bearing Registration No.TN31-K-1896 driven by its driver in a rash and reckless manner and dashed against their daughter, as a result, she had succumbed to her injuries. In order to prove the accident, the above mentioned documents were marked. RW1 and RW2 had adduced evidence regarding the insurance policy, motor vehicles report and the driving licence of the driver. RW1 had adduced evidence that the driver was not possessing a valid driving licence. 7.On considering the evidences of both parties, the Tribunal had awarded a sum of Rs.2,25,000/- with interest at the rate of 7.5% per annum to the claimants. 8.Aggrieved by the said award, the appellant has filed the above appeal. 9.Learned counsel for the appellant argued that the driver was not in possession of valid driving licence, amounting to a breach of https://hcservices.ecourts.gov.in/hcservices/ trust of the Insurance Policy. The deceased was a student, as such the income of the deceased a maximum of Rs.15,000/- per month as notional income, this was not considered by the Tribunal. 10.Learned counsel for the claimants argued that the deceased was a brilliant student and was studying in Class X. The claimants expectation that the deceased would come up as a learned professional which was negativated. The Tribunal had not considered compensation under the head of funeral expenses, transport, medical expenses and love and affection. Supporting his case, the learned counsel had cited the below mentioned citations which are as follows:- (i)United India Insurance Company Limited v. V.Vijayakumar reported in 2010 (2) TN MAC 388 “MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 149 – Violation of Policy Conditions – Liability of Insurer – Extent – Whether Insurer can be directed to pay and recover – Driver though possessing licence to drive LMV but not possessing licence to drive Transport Vehicle. Violation of conditions of policy – Tribunal not right in fastening statutory liability upon Insurer. However, in view of nature of injuries sustained by claimant, who is reduced to vegetable existence, just and reasonable course would be to direct Insurer to pay and recover same from owner for breach of Policy Conditions. “ (ii)Bajaj Allianz General Insurance Company Ltd., v. P.Manimozhi reported in 2010 (2) TN MAC 542 “MOTOR VEHICLES ACT, 1988 (59 OF 1988), Section 149 – Non-possession of valid driving licence to drive vehicle / two wheeler – Breach of terms of policy – Tribunal directing Insurer to pay compensation as awarded and recover same from owner – If proper – When there is breach of condition of policy, Insurer must pay and recover (SC followed) – Deceased, aged 56 years, sole breadwinner of family, left behind widow and minor son – Insurer, therefore, should be directed to make payment of compensation with liberty to recover same from owner. “ 11.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award passed by the learned Motor Accidents Claims Tribunal, this Court is of the considered opinion that the compensation amount is not on the higher side, regarding liability, the Insurance Company is liable to pay the said compensation amount and recover the same from the owner of the vehicle, since the driver of the motorcycle was not possessing valid driving licence, therefore, the award is confirmed which is fair and justifiable. https://hcservices.ecourts.gov.in/hcservices/ 12.It is open to the claimants to withdraw their apportioned share amounts as fixed by the Tribunal with accrued interest thereon lying in the credit of M.C.O.P.No.350 of 2008 on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions Court (FTC), Ariyalur, after filing memo along with this order. 13.Resultantly, the above Civil Miscellaneous Appeal is disposed of. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal, Additional District and Sessions Court (FTC), Ariyalur, made in M.C.O.P.No.350 of 2008, dated 29.11.2008 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar r n s To The Additional District and Sessions Court (FTC), The Motor Accidents Claims Tribunal, Ariyalur. Copy to:The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr. S.Arun Kumar, Advocate, Sr.No.23209/11 1 cc to Mr.M.Selvam , Advocate, Sr.No.23224/11 C.M.A.NO..1165 OF 2009 PA(CO) PMK.20.7.2011 https://hcservices.ecourts.gov.in/hcservices/