1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.06.2011 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI C.M.A(MD)No.455 of 2011 The Branch Manager, Bajaj Allianz General Insurance Company Limited, K.M.A.Complex, Bye-pass Road, Madurai-10. ... Appellant/2nd Respondent Vs. 1. R.Nallakkal ...1st Respondent/Petitioner 2. U.Subramaniyam ... 2nd Respondent/1st Respondent PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the award dated 03.01.2011 made in M.A.C.O.P.No.962 of 2008, on the file of the Motor Accidents Claims Tribunal(Principal Sub-Court), Madurai. For Appellant : M/s.J.S.Murali For Respondent-1 : M/s.S.Mohanram JUDGMENT The appeal is filed by the second respondent/insurer against the award of compensation made in favour of the injured/claimant for the injury sustained by him in the accident occurred at 2.00 p.m. on 03.11.2007 near ESI hospital, Thathaneri Main Road, Madurai, due to rash and negligent driving of the motor cycle owned by the first respondent and insured with the second respondent, at the time of accident. 2.In this appeal, the appellant/insurer has questioned the correctness of the award both by disputing its liability to indemnify the insured and by disputing the quantum of compensation. 3.Heard the rival submissions made on either side. 4.The offending vehicle involved in the accident is admittedly a two- wheeler and the same is admittedly ridden by one Deenadhayalan, who is none else than the son of the first respondent/owner of the vehicle. The owner did not contest the claim petition and the same is seriously contested by the second respondent/insurer. The licence possessed by the rider of the vehicle is admittedly learner's licence and the rider was at the time of accident not accompanied by any person holding due licence and did not display L-Board. 5.The main defence raised by the 2nd respondent is the riding of the vehicle by the son of the owner with learner's licence and without any duly licensed person accompanying him and without displaying any 'L' board in the vehicle, is in violation of Section 3 of Motor Vehicles Act read with Rule 3 of Central Motor Vehicles Rules. The insurer has also examined one of the staff in the RTO Office and his private invigilator as RW1 and RW2 to prove that the rider of the vehicle was having only learner's licence and that the vehicle was driven without display board https://hcservices.ecourts.gov.in/hcservices/ 2 and without duly licensed person accompanying the rider and has also produced Ex.R3-copy of the legal notice issued on behalf of the second respondent/insurer to the first respondent and his son and Ex.R4 and Ex.R5-postal acknowledgments for due receipt of the same by the first respondent and his son and Ex.R6-report of the private invigilator. In paras 3 and 4 of Ex.R3 notice, it is specifically stated by the insurer that the rider of the vehicle possessed only learner's licence and he had violated Rule 3. Though the legal notice is duly received by the addressees, no reply is issued to the same denying the allegations. The first respondent has also not chosen to appear before this Court to raise his defence in this regard and to duly establish the same through satisfactory evidence. 6.Our Supreme Court and High Court, in the judgments reported in The United India Insurance Company Limited .vs. Geonchand reported in 1997 ACJ 1065 and K.Venkatanarayanan .vs. Balaji and others reported in 2002 ACJ 1063 in identical circumstances on the failure of the owner to contest the claim and to adduce any evidence to avoid his liability, are pleased to draw adverse inference against the owner to the effect that the vehicle had been knowingly handed over by him for being driven by a person, not duly licensed. Our Hon'ble Supreme Court has, in the same judgment held that the insurer by producing the policy copy and summoning one of the staff from RTO Office, done what is best in given situation and has discharged the burden cast upon the insurer. In the instant case, the insurer has not only produced Ex.R1-licence copy, but issued notice to the first respondent and his son by specifically pointing out that Rule 3 of Central Motor Vehicles Rules is violated, but the same was not at all responded by the insured. The insurer also examined one of the staff from RTO office and his private investigator and on the failure of the first respondent/owner to adduce any evidence either through himself or through his son, an adverse inference ought to have been necessarily drawn against the first respondent/owner, as such, the Tribunal has grossly erred in finding that the insurer failed to establish violation of Section 3 of the Motor Vehicles Act read with Rule 3 of Central Motor Vehicles Rules and failed to discharge the burden cast upon the same. Further, considering the relationship between the owner and the rider of the vehicle, the first respondent owner cannot deny any knowledge about the nature of licence possessed by the rider and the manner of riding of the vehicle by the rider. Thus, the insurer has properly discharged his burden of proof of breach of policy condition and breach of statutory rules and conditions by the rider and owner of the vehicle respectively. 7. However, the same will not automatically absolve the insurer from his liability to pay compensation to third party and this case is covered under Section 149(4) of Motor Vehicles Act and the second respondent/insurer is in terms of the policy liable to indemnify the insured so far as the third party risk is concerned and as per the proviso to Section 149(4) of Motor Vehicles Act, the insurer has the right to recover the same from the insured and the award under challenge deserves modification to that effect. 8. Regarding the quantum of compensation, no serious dispute is raised on the side of the insurer. Further, considering the nature and number of injuries sustained and medical expenses incurred and the nature of permanent disability sustained and pain and suffering undergone by the https://hcservices.ecourts.gov.in/hcservices/ 3 injured, the award of compensation cannot be said to be excessive and is hence confirmed. 9.In the result, the award, dated 03.01.2011 made in M.A.C.O.P.No.962 of 2008, on the file of the Motor Accidents Claims Tribunal(Principal Sub-Court), Madurai is modified by directing the second respondent/insurer to satisfy the award amount at the first instance and thereafter to recover the same from the insured, by filing execution in the same proceeding. The award stands confirmed in other aspects. 10. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Sd/- Assistant Registrar (RTI) / True Copy / Sub Assistant Registrar To The Principal Subordinate Judge, Motor Accidents Claims Tribunal, Madurai. +1CC TO MR.J.S.MURALI, ADVOCATE SR : 21518 +1CC TO MR.MOHANRAM, ADVOCATE SR : 20850 Vsn SR : 11.04.2012 : 3p/4c C.M.A(MD)NO.455 of 2011 30.06.2011 https://hcservices.ecourts.gov.in/hcservices/