(Prayer: This Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment dated 20.10.2011, made in MCOP.No.19 of 2009 on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Bhavani.)
1. This appeal is filed against the judgment and decree dated 20.10.2011, made in MCOP.No.19 of 2009 on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Bhavani, in and by which, the Tribunal has awarded a sum of Rs.1,33,500/- as against the claim of Rs.4,00,000/- for the injuries sustained by the claimant/first respondent herein.
2. On 22.03.2008 at about 2.00 p.m., while the claimant was proceeding on Bhavani to Anthiyur main road on the extreme left side of the road, a TVS Champ bearing Registration No.TN-36-W-0262 driven by the second respondent herein in a rash and negligent manner, hit against the claimant, as a result, the claimant sustained grievous injuries. Immediately, she was taken to the Trust Hospital, Erode, where she took treatment for about one month as inpatient. The second respondent is the owner-cum-rider of the motorcycle which is insured with the appellant Insurance Company. The claimant filed the claim petition claiming a sum of Rs.4,00,000/- as compensation.
3. After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the rider of the said motorcycle and awarded a sum of Rs.1,33,500/- with interest at 7.5% per annum. Aggrieved by the same, the appellant-Insurance Company has filed the present appeal.
4. Learned counsel appearing for the appellant/Insurance Company contended that the Insurance Company is not liable to pay the compensation, as the claimant did not possess the valid driving license nor he has valid insurance coverage for the said vehicle at the time of accident. Taking support from Section 149(2)(a)(ii) of the Motor Vehicles Act, learned counsel contended that the second respondent was not having a valid license at the time of accident, therefore, the claimant has no right to fasten liability on the Insurance Company. On this short ground, he prayed for quashing the impugned award passed by the Tribunal.
5. Per contra, learned counsel for the first respondent/claimant submitted that even if it is a third party claim, the Insurance Company has no locus standi to contend that the Insurance Company is not liable to pay the compensation since the second respondent/rider of the said TVS Champ was not having the valid driving license nor insurance coverage at the time of accident. Taking support from the judgment of the Hon'ble Apex Court in the case of New India Assurance Company, Shimla v. Kamla and Others [2001 (4) SCC 342], which heldthat the Insurance Company cannot get rid of its third party liability, it was contended that the Insurance Company, if it is proved that the vehicle was driven by its driver without having valid license, after paying the compensation to the injured claimant, can recover the award amount from the owner of the vehicle. It is his further contention that second respondent herein/rider of the said motorcycle did not even enter into the witness box and that the Insurer has also not let in any evidence in the rebuttal for rash and negligent driving of the driver. Therefore, in view of absence of such evidence, the Tribunal has rightly held that the accident had occurred only due to the rash and negligent driving of the said motorcycle. Therefore, the appeal preferred by the appellant Insurance Company against the meagre compensation of Rs.1,33,500/- for the injuries sustained by the claimant, aged about 32 years at the time accident, cannot be sustained, he contended. Thus, on this basis, he sought for dismissal of the present appeal.
6. Heard the learned counsel appearing on either side and perused the materials available on record.
7. On 22.03.2008 at about 2.00 p.m., while the claimant and her friend Saridha were proceeding from their home on Bhavani to Anthiyur main road on the extreme left side of the road, a TVS Star City Bike bearing Registration No.TN-36-W-0262 driven by the second respondent on the same road from north to south in a rash and negligent manner, hit against the claimant, as a result, the claimant sustained grievous injuries as stated below:
i. (R) Ear bleeding
ii. (R) Wrist Abrasion
iii. Abrasion (L) Elbow
iv. Diffuse contusion left leg-fracture tibia, fibula
v. Abrasion Thigh hip CT Scan R Temporal contusion
(L) Sylvian Diffus SAH
(R) Temporal Fracture, X-ray left leg fracture both bones.
Immediately after the accident, she was taken to the Trust Hospital, Erode, where she took treatment as inpatient and after discharge from the hospital, it is stated, she was not able to attend her work for about three months.
8. During the course of trial, the claimant/P.W.1 deposed that the accident had occurred due to the rash and negligent driving of the rider of the said motorcycle. Such deposition of the claimant is supported by the Ex.P1/First Information Report, Ex.P2/observation Magazar, Ex.P3/Rough sketch and Ex.P5/charge sheet. To rebut the said deposition of the claimant, the Insurance Company has not let in any evidence to deny the rash and negligent driving of the rider, besides the rider of the said motorcycle was also not examined. Thus, the Tribunal has rightly fastened the liability on the Insurance Company. However, in such circumstances, the only contention of the Insurance Company is that the insurance policy obtained by the second respondent for the said vehicle is not covered for the third party, apart from that the rider of the vehicle is not having driving license, therefore, the injured claimant being a third party to the accident is not entitled to claim compensation.
9. In this regard, it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of S.Iyyapan v. United India Insurance Co. Ltd. and another [2013 (2) TN MAC 262 (SC)] and for better appreciation, relevant portions of the said judgment are extracted hereunder:
17. The heading Insurance of Motor Vehicles against Third Party Risks given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.
18. Reading the provisions of Sections 146and 147of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside.
20. We, therefore, allow this appeal, set aside the impugned judgment of the High Court and hold that the insurer is liable to pay the compensation so awarded to the dependants of the victim of the fatal accident. However, there shall be no order as to costs.
From the above said judgment, it is clear that the insurer cannot be absolved of liability on the ground that although the driver had a license to drive a light motor vehicle, he had no authorization to drive it when used as a commercial vehicle. It is further held that in any case, third parties have a right to recover the amount from the insured. It was also held that it is for the insurer to proceed against the insured for recovery in the event that there has been a violation of any conditions of the insurance policy. In such circumstances, in the case on hand, I am of the view that the Insurance Company cannot deny its liability on the ground that the injured/claimant in the accident was a third party. Moreover, to disprove that the rider of the said motorcycle was not holding the driving license, the Insurance Company did not take any steps to bring the rider of the said motorcycle into witness box for deposition. Therefore, this Court is not inclined to interfere with the award passed by the Tribunal in fastening the liability on the Insurance Company.
10. To sustain the quantum of compensation awarded by the Tribunal, the learned counsel for the claimant brought to the notice of the Court the deposition of P.W.2/Doctor and as per his deposition, it is seen that the petitioner had mild swelling and deformity over the middle of left legal and thereby, the doctor has also assessed the disability at 40%. At the time of accident, the claimant was doing agricultural coolie work and was 32 years old and therefore, by taking note of this aspect, the Tribunal has fixed monthly notional income of the claimant at Rs.3000/- and thereafter, it has awarded a sum of Rs.80,000/- (40 x 2000) towards disability. Apart from that, the Tribunal has also awarded a sum of Rs.20,000/- towards pain and suffering, Rs.3000/- towards extra nourishment, Rs.2,000/- towards transportation, Rs.1,000/- towards damages to clothes, which are in my view just and reasonable compensation considering the nature of injuries sustained by the claimant as stated above. The Tribunal has also warded a sum of Rs.9,000/- towards loss of earning, which is also just and reasonable compensation, for, naturally, the claimant would not have gone for her agricultural coolly work for three month due to the injuries suffered by her. Based on the medical bills-Ex.9 and Ex.P-12-bill for x-ray, the Tribunal has awarded a sum of Rs.18,500/- and therefore, the same is hereby confirmed.
11. In fine, for the reasons stated above, the Civil Miscellaneous Appeal is dismissed. The appellant- Insurance Company is directed to deposit the entire award amount of Rs.1,33,500/- with interest at 7.5% from the date of petition till the date of realization, to the credit of MCOP No.19 of 2009, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Bhavani, less the amount already deposited if any, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire award amount along with the accrued interest therein, by moving appropriate application. No Costs. M.P.No.1 of 2012 is closed.