National Insurance Co. Ltd. v. Tharabai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.08.2009CORAMTHE HON'BLE MR.JUSTICE S.PALANIVELUC.M.A.No.2720 of 2004National Insurance Co. Ltd.,Chennai... Appellant/III RespondentVs1.Tharabai2.Ramabai3.Sridharan4.Harikumar...Respondents/Petitioners5.N.Moorthy ... Respondents /1st RespondentPRAYER:Civil Miscellaneous Appeal against the award and decreedated 11.8.2003 made in O.P.No.1875 of 1999 on the file of the MotorAccidents Claims Tribunal, Additional District Sessions Judge, FastTracK Court No.2, Chennai.For Appellant : Mr.S.ArunkumarFor Respondents 1 to 4 : Mr.K.Natarajan For 5th Respondent : Mr.M.A.Ashokan- - - - -J U D G M E N TIn the claim petition, it is stated that while the deceasedTulasiraman was walking along Ennore Kathivakkam High Road, a KineticHonda Motor cycle with Registration No.TN 02 Z 7508 was rode by thefifth respondent, its owner, in a rash and negligent manner, dashedagainst him by means of which he sustained grievous injuries and wasrushed to the hospital where he died. The accident took place due tothe rash and negligent driving of the fifth respondent. Theappellant is the insurer of the fifth respondent's vehicle. Thedeceased was 53 years at the time of accident and was earning a sumof Rs.6,000/- per month by taking cycle stand contract, vegetablesvending and as a contract labourer. Hence, a sum of Rs.4,00,000/- isprayed for as compensation. 2.In the counter filed by the fifth respondent, it is stated thathe rode the motor cycle near the site of accident slowly but thedeceased suddenly crossed the rode and he invited the accident.Hence, the accident took place due to the carelessness of thedeceased. There was no fault on the part of the fifth respondent. https://hcservices.ecourts.gov.in/hcservices/ This respondent possessed valid licence at the time of accident. Thevehicle was duly insured with the appellant Insurance company upto08.05.1996. Hence, the appellant has to pay the compensation. So,the petition may be dismissed. 3.In the counter filed by the appellant/Insurance company, it isstated that the claimant has to establish that the vehicle wasinsured with the appellant and the fifth respondent was possessingvalid licence to ride the motor vehicle. The particulars of licencefurnished by the claimant in his claim form differ from the onemaintained by the concerned Regional Transport Office. It is deniedthat the deceased died of dash by the fifth respondent two wheeler.The accident took place due to the negligent on the part of thedeceased. The age, income and avocation of the deceased have to beproved by the claimants. The amount claimed is excessive and hencethe petition has to be dismissed.4.After considering the evidence on record, the tribunal fixedthe liability upon the fifth respondent, found that the fifthrespondent was having a valid licence to ride a motor vehicle andhence the insurance company has to pay the compensation. It has alsoquantified the compensation to Rs.1,96,000/-. 5.The learned counsel for the appellant Mr.S.Arunkumar wouldsubmit that the tribunal has lost sight of the importance in theevidence adduced by R.W.1 who is an official from the RegionalTransport Office, Madras City (Central) and licence produced by theowner is a bogus one. Conversely, the learned counsel for the fifthrespondent/owner would say that the evidence of R.W.1 itself would goto show that the licence produced by the owner is a genuine one andthe insurance company has not discharged its burden in showing thatEx.R.2 was renewed licence which was in force and was a validlicence. 6.The learned counsel for the fifth respondent also submits thatthe owner submitted a claim form to the Insurance company aftermaththe accident, marked as Ex.R.3 in which he has stated that theDriving Licence No.9522/91 dated 03.09.91 was issued by AssistantLicensing Authority, Madras City (Central) and the date of expiry as01.09.96. R.W.1 is the Junior Assistant working in the above saidR.T.O (central) who says that Licence No.9522/91 was issued in thename of one Thirumani S/o Sagadevan residing in No.37, Third Street,M.S.Nagar, Chetpet, Chennai – 31 and that the licence as mentioned inthe claim form was not issued to the owner of the vehicle namely thefifth respondent herein. 7(a).In the cross-examination by the owner, Ex.R.2 was markedwhich is a subsequent licence issued by R.T.O, (Central) in the year2001, much later to the accident and R.W.1 has also stated thatEx.R.2 was issued by R.T.O (West) renewing the earlier licence. In https://hcservices.ecourts.gov.in/hcservices/ fact, it was issued by R.T.O (East). Whatever may be, Ex.R.2 was notissued by R.T.O. (Central). Taking advantage of this portion ofevidence, the learned counsel for the fifth respondent would say thatthe insurance company has failed to produce the licence particularsof the earlier licence prior to the renewal of Ex.R.2. This courtdoes not accept the said contention for the reason that the fifthrespondent herein has consciously mentioned in his claim form thatthe Licence No.9522/91 was issued by the R.T.O (Central) and hecannot turn round and a suggestion that the earlier licence was notproduced. 7(b)The cumulative effect of the above said factors would go toshow that the fifth respondent has not informed the insurance companyas to the correct particulars of his driving licence. It is to benoted that in view of production of Ex.R.1 to R.5, the drivinglicence reportedly issued by R.T.O (central) under Ex.R.6 cannot be atrue one. Ex.R.6 is for the period from 02.09.91 to 01.09.96. Itis also in the evidence of R.W.1 that Licence No.9522/91 was issuedin the name of one Thirumani and for the said evidence he hasproduced the letter of the R.T.O (Central) also. The above saidfactors would go a long way to show that the fifth respondent was nothaving a valid licence at the time of accident. 8.The next limb of contention of the learned counsel for therespondent is that the owner of the vehicle was not charge-sheetedunder Section 3 of the Motor Vehicles Act and the tribunal has alsodiscussed about this aspect and observed that in the absence of anycharge-sheet under Section 3 of the M.V. Act, it could not be statedthat the owner was not having valid licence. Merely because therewas no charge against the owner under Section 3 of the M.V. Act, itcould not be concluded that the owner was possessing a valid licence.When ample evidence are forthcoming by examination of R.W.1, theofficial from R.T.O, the failure on the part of the police to make acharge under Section 3 of the M.V. Act will not come to the rescue ofthe owner. 9.In view of the above said observations, this court is of theconsidered view that the fifth respondent has miserably failed toestablish that he was possessing a valid licence at the time ofaccident and in this regard the insurance company has to be absolvedfrom his liability. Hence, the observations, findings andconclusions of the tribunal fixing the liability to pay compensationby insurance company is set aside. 10.Before this court, there is no debate as regards the quantumof compensation and the compensation quantified by the tribunal isconfirmed. 11.In fine, the Civil Miscellaneous Appeal is allowed settingaside the award passed by the tribunal with reference to the fixing https://hcservices.ecourts.gov.in/hcservices/ of liability upon the insurance company and the claimants areentitled to recover the compensation as fixed by the tribunal fromthe owner of the vehicle, namely the fifth respondent herein. Theappellant is permitted to withdraw the amount from the deposit. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgrTo1. The Motor Accident Claims Tribunal Additional District Sessions Judge, Fast Track Court No.2, Chennai.2. The Section Officer, VR Section, High Court, Madras.1 cc To Mr.N.Rosi Naidu, Advocate, SR.339161 cc To Mr.M.K.Ashokan, Advocate, SR.337052 ccs To Mr.R.Thiyagarajan, Advocate, SR.35460C.M.A.No.2720 of 2004NTK(CO)SRA(11/9/2009)