Anbalagan v. The New India Assurance Co. Ltd. & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.08.2009CORAMTHE HON'BLE MR.JUSTICE S.PALANIVELUC.M.A.No.3232 of 2004The New India Assurance Co. Ltd.,Cuddlore.... Appellant/2nd RespondentVs1.Anbalagan... 1st Respondent/Petitioner2.Seema Aallolam ... 2nd Respondent/1st RespondentCivil Miscellaneous Appeal filed under section 173 of MotorVehicles Act 1988 against the judgment and decree dated 19.1.2004 inM.C.O.P. No.310 of 2003 by the Additional District Judge, Fast TrackCourt – 3, Motor Accidents Claims Tribunal, Virudhachalam. For Appellant : Mr.K.KumarFor Respondents : No appearanceJ U D G M E N TIn the claim petition, it is stated that on 27.3.2002 at about10.00 p.m., while the claimant and his friend one Rathinavel weregoing by a TVS Moped bearing Registration No.Tn 31 Y 6924 alongVirudhachalam – Chidambaram road, near Ko.Mavidanthal village, atractor belonging to the second respondent with Registration No.TN 31Q 3749 was driven by its driver in a rash and negligent manner dashedagainst the moped by means of which the claimant fell down andsustained injuries including fractures in his leg. He was removed toGovernment hospital, Virudhachalam and then was rushed to Zipmerhospital, Pondicherry for further management. He was earning a sumof Rs.6,000/- per month by milk vending business and agriculture.Hence, a sum of Rs.2,00,000/- is prayed for as compensation.2.In the counter filed by the appellant, it is stated that theaccident did not took place due to the negligence on the part of thetractor driver but only due to the carelessness of the claimant. It https://hcservices.ecourts.gov.in/hcservices/ is false to state that he was earning from agriculture and milkvending business. The compensation claimed is excessive. Hence, thepetition has to be dismissed. 3.The learned Tribunal Judge has observed that the tractordriver was negligent at the time of accident and there is not muchdispute before this court with regard to the negligent part and thesaid finding is confirmed. 4.In so far as the liability for payment of compensation isconcerned, the appellant Insurance company very much disputes theaward by stating that the driver of the tractor did not possess validlicence at the time of accident. Ex.P.5 has been marked which iszerox copy of the licence given to the driver of the secondrespondent for in which it is stated that from 23.02.2000 to24.02.2003 it was valid. It has been given for driving Light MotorVehicles. 5.The learned counsel for the appellant Mr.K.Kumar would submitthat unless an endorsement in the driving licence authorising thedriver to drive a particular type of vehicle, is made, it is not atall valid. He draws attention of this court to Section 14 (2) (a)of the Motor Vehicles Act, 1988 reads as follows- "(a) in the case of a licence to drive a transportvehicle, be effective for a period of three years :Provided that in the case of licence to drive atransport vehicle carrying goods of dangerous or hazardousnature be effective for a period of one year and renewalthereof shall be subject to the condition that the driverundergoes one day refresher course of the prescribedsyllabus; and 6.Significantly, Ex.P.5 does not bear any endorsementauthorising the driver to drive a heavy goods vehicle nor anytractor. It is mentioned therein that the licence was obtained bythe driver for driving tractor and trailer which was valid till12.03.1986 and there is nothing to show that afterwards it wasrenewed by the competent authority. It is also stated that he wasauthorised to drive transport vehicle with Badge No.25212dt.18.11.95/Neyveli. Had he been authorised to drive any heavy goodsvehicle or tractor, the necessary endorsement should have been madein Ex.P.5 licence and they are absent therein.7.The learned counsel for the appellant also placed relianceupon two decisions of the Supreme Court. In 2008 (2) TN MAC 508(SC), United India Insurance Co. Ltd. V. Rakesh Kumar Arora and https://hcservices.ecourts.gov.in/hcservices/ Others, the Supreme Court has held that when there is no valid andeffective licence on hand, the insurance company cannot be heldliable for payment of compensation. In 2008 (2) TN MAC 479 (SC),National Insuranace Co.Ltd. v. Kaushalya Devi & Ors., Their Lordshipshave observed that when an endorsement permitting the driver to driveheavy goods vehicle is not existing on the date of accident, theowner not stepping into the witness box to say anything in thisregard, then the Insurance company could not be made liable. Furtherthe amount deposited was directed to be refunded to the insurer andthe proceedings for realising the amount can be initiated against theowner. 8.As far as the facts of the present case are concerned, eventhough the driver was possessing a licence, it is not a valid one,that is to say, he did not possess any licence to drive the tractorat the time of accident. So it is to be held that the insurancecompany has to be absolved from its liability. 9.As far as the quantum of compensation is concerned, theclaimant was aged 27 years at the time of accident and he sustainedtwo fractures in both bones of his right leg. P.W.2, Doctor hasstated that the fractured bones malunited and the left leg is foundbent, that he could not walk properly, that his right leg isshortened by 1½", that the movements in his right leg have beenrestricted, that he could not lift the heavy things and attend toagriculture work and that he is suffering permanent disability to theextent of 35%. However, the tribunal has fixed the permanentdisability at 20%. It has applied multiplier method. It has alsofixed Rs.2,500/- per month as loss of income and Rs.30,000/- asannual loss of income. Applying the multiplier 18, for 20% ofdisability, it has reached Rs.1,08,000/- as total loss of incomewhich has been awarded under the head permanent disability.Rs.5,000/- each has been granted for pain and suffering and medicalexpenses, respectively. The tribunal has held that both therespondents, namely the appellant and the second respondent hereinare jointly and severally liable to pay the compensation. In view ofthis court, the above said quantification of compensation isappropriate and there is no need to interfere with it. 10.In fine, the Civil Miscellaneous Appeal is allowed absolvingthe Insurance Company from the liability of paying the compensation.It is stated that the entire award amount has been deposited by theInsurance company alongwith interest and costs in which 50% has beendirected to be withdrawn by the claimant and it is accordinglywithdrawn. The appellant is permitted to withdraw the excess amountavailable in the deposit and it may realise the part of compensationwhich was withdrawn by the claimant from the owner, namely the secondrespondent herein. The first respondent/claimant is entitled torealise the balance of compensation he is entitled from the https://hcservices.ecourts.gov.in/hcservices/ owner/second respondent. The compensation shall carry interest @7.5% per annum from the date of claim petition till the date ofdeposit. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgrTo The Additional District Judge, Fast Track Court – 3, Motor Accidents Claims Tribunal, Virudhachalam. Copy toThe Section Officer,V.R.Section, High Court, Madras.1 cc To Mr.R.Muralidharan, Advocate, SR.35781.1 cc To M/s.Sree and Associates, Advocate, SR.35715. C.M.A.No.3232 of 2004 KS(CO)RVL 25.08.2009