IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 04.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2117 of 2004 and C.M.P.No.12420 of 2004 and M.P.No.1 of 2010 in Cross Objection SR. No.81939 of 2010 The Branch Manager M/s. Oriental Insurance Company Ltd. Tiruvanamalai. ...Appellant/3rd Respondent/1st Respondent in cross objection SR 81939/1 Versus 1. K. Kumar .. 1st Respondent/Petitioner 2. Velu ..Respondents 2&3/ Respondents 1 &2 3. C. Vijayakeerthi Naicker ...2nd Respondents, 3rd Respondent & the cross objection in Cross objection SR 81939/10 Prayer:- This appeal and cross objection SR nO.81939/10 are preferr against the Award and Decree dated 28.03.2003 made in M.C.O.P.No.9 of 19 on the file of the Motor Accidents Claims Tribunal, Cheyyar, Sub Cou Cheyyar, Tiruvannamalai District. For Appellant : Mr.S. Manohar/1st respondent cross objection SR 81939/10 For R1 : Mr. P. Mani/2nd respondent in cross objection SR 81939/10 For R3 : Mr. V. Ayyadurai/for cross objection i cross objection SR 81939/10 - - - https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The above appeal has been filed by the appellant / Insurance Compan against the award and decree dated 28.03.2003 made in M.C.O.P.No.9 of 19 on the file of the Motor Accidents Claims Tribunal, Cheyyar, Sub Cou Cheyyar, Tiruvannamalai District. 2.The short facts of the case are as follows: On 22.11.1991, at about 05.30 p.m., the claimant after ploughi his land and while he was returning in the tractor, bearing Registrati No.TN-25-2891, which was driven by its driver in a rash and neglige manner, the tractor capsized. In the result, the claimant had sustain grievous injuries. Hence the compensation petition was filed against t respondent for a sum of Rs.1 Lakh with interest. The second responde had filed a counter statement and resisted the Claim Petition. T respondent stated that the claimant had fallen down from the vehicle a due to this, he had sustained injuries. The claimant had also receiv compensation of a sum of Rs.1,700/- from the second respondent, 17.07.1992. After that, the Claim Petition has been filed. The thi respondent had filed a counter statement stating that on 22.11.1991, about 05.30 p.m., when the tractor was returning from the land, aft ploughing, it capsized due to rash and negligent driving of the fir respondent and this was denied . The insurance particulars had not be furnished. The respondent further stated that the first and seco respondent had colluded with the applicant and claiming compensati against the third respondent. At the time of accident, the driver was n in possession of a valid driving licence. The claimant had also n travelled in the tractor. The age and income of the claimant are denie The respondent further stated that, as per the investigator's report, t driver was not possessing a valid driving licence. 3. On pleading of both parties, the Tribunal had framed two issu for consideration, viz.,:- “ 1. Did the first respondent commit the accident in a rash and negligent manner? 2. Whether the claimant is entitled to receive compensation? If so, what is the quantum of compensation?” 4. On the side of the claimant, one witness was examined i.e., t claimant and four documents were marked. On the side of the respondent R.W.1, was examined and investigator's report was filed. The mark documents of the claimant are as follows:- 1. F.I.R. 2. Hospital records 3. Motor Vehicle Inspector's Report 4. Judgment copy of the Criminal Court. https://hcservices.ecourts.gov.in/hcservices/ 5. P.W.1 has adduced evidence stating that the accident had occurr on 22.11.1991, at about 05.30 p.m. He further stated that the fir respondent's rash and negligent driving was the cause of the accident. order to prove the accident took place, F.I.R. was marked. P.W.2, docto stated that he had examined the claimant on 22.11.1991 at about 11.45 p. He further stated that the claimant had sustained injuries on his le leg. In order to prove the same, the claimant marked Ex.P.2, the medic records. On considering the evidence of the witnesses, the Tribunal h awarded a compensation of a sum of Rs.85,000/- with interest at the ra of 9%. 6. Aggrieved by the said award, the Insurance company has filed t above appeal. 7. The learned counsel for the appellant argued that the Insuran Company is not liable to pay compensation since the driver of the tract was not possessing the valid driving licence. The charge sheet clear established that the first respondent has been charge sheeted und Section 3 of the Motor Vehicles Act for driving the vehicle. The fir respondent had also pleaded guilty to the charges framed against him. T second respondent has not contested the case and he has remained ex part As per the policy conditions, the Insurance Company is not liable to p compensation as the claimant is an unauthorised passenger. Further, t compensation amount is on the higher side, since the claimant h sustained only minor injuries. The learned counsel has cited Judgment which reads as follows:- i) National Insurance company Limited Vs. V. Chinnamma and others (2004 ACJ 1909):- “Motor Vehicles Act, 1988, Section 147 (1) (prior to its amendment in 1994) – Motor insurance – Goods vehicle – Passenger risk – Liability of insurance company – Death of passenger travelling in tractor – trailer along with his bags of vegetables when he fell down – Accident occurred in 1991 – Whether the insurance company is liable – Held: no; insurance for owner of goods or his authorised representative travelling in a vehicle became compulsory only from the date of coming into force of 1994 amendment. (2003 ACJ 1 (SC) followed). Motor Vehicles Act, 1988, Sections 147 (1) and 149 (2) (a) (i) (c) – Motor insurance – Goods vehicle – Agricultural purpose – Passenger risk – Liability of insurance company – Death of owner of goods travelling in tractor – trailer along with his goods when he fell https://hcservices.ecourts.gov.in/hcservices/ down due to jerk – Deceased had purchased vegetables and was transporting them to the market for sale – Contention that carrying of vegetables in a tractor would be for agricultural purpose and insurance company is liable – Whether insurance company is liable – Held: no; use of tractor for agricultural purposes would not be construed to mean that tractor – trailer can be used for carriage of goods by another person for his business activities; vehicle was not being used for agricultural purposes.” ii) Branch Manager, United India Insurance Company Limited vs. Nagammal and others (2009 (1) TN MAC 1 (FB)):- “ Motor Vehicles Act, 1988, Sections 147, 149(4) & 149 (5) – Gratuitous Passengers travelling in Goods vehicle – Liability of Insurer – Extent – Under Section 147 Insurer not statutorily required to cover liability in respect of passenger in goods vehicle unless such passenger is owner of goods or agent of owner of goods accompanying such goods in goods vehicle – In absence of any statutory requirement to cover liability in respect of passenger in goods vehicle, principle of “pay and recover” as statutorily recognized in Sections 149 (4) & 149 (5) not applicable ipso facto – Therefore, ordinarily Court not expected to issue direction to Insurer to pay to claimant and thereafter to recover same from owner – Where, relying upon decision in Satpal Singh, Tribunal directed Insurer to pay compensation, Appellate Court required to consider as to whether such direction could be set aside in its entirety or liability should be fastened only on driver and owner or whether Insurer should be directed to comply with direction to pay & recover – No such direction can be issued by Tribunal after decision in Baljit Kaur's case, merely because date of accident was before such decision – Date of accident is immaterial – However, where matter already decided by Tribunal before decision in Baljit Kaur, it would be in discretion of Appellate Court depending upon facts and circumstances of case, whether doctrine of “pay and recover” to be applied or not.” 8. The learned counsel for the claimant argued that the claimant h sustained injuries due to the accident, while he was walking on the roa https://hcservices.ecourts.gov.in/hcservices/ At that time, the first respondent had driven the vehicle in a rash a negligent manner. The same was established by way of F.I.R. and char sheet. The driver pleaded guilty. The learned counsel in support of h case, cited a Judgment, which reads as follows:- i) The New India Assurance Company Limited, Tirunelveli Vs. Chandran and another (2010 (2) TCJ 342):- “Motor Vehicles Act, 1988:- Section 147 – Statutory requirement to cover the liability – Gratuitous passengers claimed compensation – Tribunal passed a common order awarding compensation – Appellant contending that the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle. High Court held:- It would be in the decision of the appellate Court, depending upon the facts and circumstances of the case, whether the doctrine of “Pay and recover” should be applied or as to whether the claimant would be left to recover the amount from the person liable – All the persons travelled in the tempo van are villagers and they belong to the poorest Section of the Society – Insurance Company has to pay the compensation at the first instance and thereafter, they could be permitted to recover the amount from the vehicle owner – Appeals are disposed of.” Therefore, the claimant is entitled to receive compensation for sustaini an injury in the said accident. 9. The learned counsel for the second respondent/owner of the vehic argued that there was no discussion about the driving licence and also discussion on the first respondent's driver had a valid driving licence the time of the accident. The driver was not examined and the seco respondent was also not examined regarding the driving licence issue. T Regional Transport Officials were also not examined to prove that t driver did not have a valid driving licence at the time of accident. the absence of documentary and oral evidence, pay and recovery is n applicable against the owner of the vehicle. Therefore, the seco respondent driver is not liable to pay any compensation to the claimant. 10. The learned counsel further argued that the case was n registered under Section 3 of the Motor Vehicles Act. Supporting h argument, he had marked the following decisions:- i) Ashok Gangadhar Maratha Vs. Oriental Insurance Company Ltd. ((1999) 6 SCC 620):- “Motor Vehicles Act, 1988 – Sections 3, 2(10), (21), (28), (47), (14), (16) & (23), 66, 77, 78 and 79 https://hcservices.ecourts.gov.in/hcservices/ – Effective licence – Light motor vehicle – Neither having a permit for a goods carriage nor carrying any goods on the date of accident – Such a vehicle, even though designed to be used as a goods carrier or transport vehicle, held, remained a light motor vehicle and was not a light goods vehicle or a transport vehicle – Hence, licence to drive the light motor vehicle issued in Form 6, held, was an effective and valid licence to drive such a vehicle – Contrary contention of the insurer disowning his liability, rejected – Words and phrases - “Effective driving licence” - Meaning of – Held, means a valid licence both as regards the period and type of vehicle – Words and phrases - “Light motor vehicle” - Scope – Central Motor Vehicles Rules, 1989, Rr.2(h) (formerly 2 (e)) & 16 and Form 6 – Consumer Protection Act, 1986, Sections 2 and 14 – Insurance claim.” ii) Radhey Shyam Agarwal and another Vs.Gayatri Devi and others (1998 ACJ 1177):- “ Motor Vehicles Act, 1988, Section 149 (2) – Motor Insurance – Defences available to insurance company- Overloading – Death of passenger in a bus when he was thrown out – Tribunal exonerated the insurance company on the ground that conditions of permit were violated as the bus was overloaded – Whether the insurance company is exempted from liability – Held: no; this defence is not available under Section 149 (2) against third party risk as the vehicle was not used for a purpose not allowed by the permit. Quantum – Fatal accident – Deceased aged 30, a businessman, earning Rs.3,250/- p.m.-Claimants: widow and five minor children – Tribunal assessed dependency at Rs.1,000/- p.m., adopted multiplier of 25, made deductions for lump sum payment and uncertainties of life and allowed Rs.1,50,000/- plus Rs.5,000/- for loss of consortium, Rs.15,000/- for loss of company to minor children and Rs.2,000/- for funeral expenses- Appellate Court adopted multiplier of 17, disallowed deductions and assessed compensation at Rs.2,04,000/-, but, Tribunal's award of Rs.1,72,000/- upheld in appeal in the absence of cross-appeal or cross- objections.” iii) National Insurance company Limited Vs. J.Maheshwaramma ((2009) 13 SCC 188):- https://hcservices.ecourts.gov.in/hcservices/ “ A. Consumer Protection – Services – Insurance – Liability of insurer in case of fake driving licence – Own damage claim – National Commission holding fabrication of driving licence was of no consequence in view of Swaran Singh, (2004) 3 SCC 297, since insured died during validity of policy – Held, Swaran Singh is applicable only in third-party claim cases but not to own damage claim cases as clarified in Laxmi Narain, (2007) 3 SCC 700 – Instant case not being third-party claim case but arising out of contractual liability, matter remitted to National Commission to consider afresh in the light of Laxmi Narain – Consumer Prtoection Act, 1986 – Sections 2(1) (o) and (g) – Motor Vehicles Act, 1988 – Sections 149 (2) (a) (ii) and 3. B. Consumer Protection – Services – Insurance – Repudiation of claim- Burden on insurer – Type of vehicle in driving licence at variance with type of vehicle victim was driving – Held, when insurer repudiating claim on ground of variance in type of driving licence of victim, insurer is bound to discharge burden that victim died mainly because to type of vehicle for which he had no licence to drive – If such a case is not made out, insurer cannot escape liability merely on technical breach of licensing conditions – Motor Vehicles Act, 1988 – Sections 149 (2)(a)(ii) and 3.” iv) Raghvendra Singh Chouhan and others Vs. Rambabu Singh and others (1998 ACJ 978):- “Motor Vehicles Act, 1939, Section 96 (2) (b) (ii) (Section 149 (2) (a) (ii) of 1988 Act) – Motor insurance – Defences available to insurance company – Driving licence – Insurance company disputed its liability on the plea that the driver of the offending vehicle had no licence but it led no evidence in support thereof – Whether a statement by a witness of the claimants that the driver had no licence would absolve the insurance company of its liability when the insurance company made no efforts in this regard – Held : no. “ v) New India Assurance Company Limited Vs. Vidya Bai and others (1998 ACJ 768):- https://hcservices.ecourts.gov.in/hcservices/ “ Motor Vehicles Act,1988, Section 149 (2) (a) (ii) – Motor insurance – Defences available to insurance company – Driving licence – Insurance company contended that driver of the offending vehicle was holding a fake licence – Administrative Officer of the company produced an application by the Surveyor on which the Licensing Authority had made a remark that the relevant licence was not issued by it – Surveyor's report was produced but the Surveyor was not examined – No official from Regional Transport Office was examined to establish that no licence was issued in favour of the driver – Despite opportunity afforded by the appellate court no certificate from the R.T.O. was produced in relation to the validity of the relevant licence – whether in the absence of record from the Transport Authority indicating that the driver had no licence at the relevant time the insurance company can be exempted from liability – Held:no.” 11. On considering the facts and circumstances of the case and aft hearing the arguments advanced by the learned counsel on either side the parties concerned and on perusing the impugned decision of t Tribunal, this Court is of the considered opinion that in the impugn award, there was no findings as to whether or not the claimant was gratuitous passenger. Further there was also no discussion to establi that the driver was not possessing a valid driving licence, as there w no recording evidence of driver or owner or R.T.O. Officials. Therefor pay and recover does not arise in this case. But, as per F.I.R. a charge sheet, it has been proved that the accident had occurred due to t rash and negligent driving of the driver of the tractor. In the sa accident, the claimant had sustained injuries. Therefore, this Cou confirms the impugned award dated 28.03.2003 passed by the Tribunal ma in M.C.O.P.No.9 of 1999, on the file of the Motor Accidents Clai Tribunal, Sub-Court, Cheyyar. 12. It is open to the claimant to withdraw the entire compensati amount with accrued interest thereon lying in the credit of M.C.O.P.No of 1999 on the file of the Motor Accident Claims Tribunal, Sub-Cour Cheyyar, Tiruvannamalai District, after filing necessary payment o application, in accordance with law, subject to withdrawals, if any, ma already. 13. In the result, the above Civil Miscellaneous Appeal is dismisse Consequently, the Award and Decree dated 28.03.2003, made in M.C.O.P.No of 1999, on the file of the Motor Accidents Claims Tribunal, Sub-Cour Cheyyar, Tiruvannamalai District, is confirmed. Consequently, connect Miscellaneous Petition is closed and the M.P.No.1 of 2010 in Cro Objection SR.No.81939 of 2010 is rejected. There is no order as costs. smn https://hcservices.ecourts.gov.in/hcservices/ Sd/- Asst.Registrar // True copy // Sub Asst.Registrar To The Motor Accidents Claims Tribunal Sub-Court, Cheyyar, Tiruvannamalai District. + 1CC to Mr.S.Manohar, Advocate SR.15728 + 1CC to Mr.Ayyadurai, Advocate SR.15909 + 1CC to Mr.P.Mani, Advocate SR.15888 C.M.A.NO.2117 OF 20 NM(CO) AF (13.05.2011) https://hcservices.ecourts.gov.in/hcservices/