National Ins.Co.Ltd v. Kasambu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.04.2021

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN C.M.A.No.1164 of 2012 and M.P.No.1 of 2012 National Insurance Co. Ltd., Mydhily Mandiram Janatha Junction Palarivattom Kochi 682 025.

...Appellant/2nd Respondent -vs1.Kasambu 2.Dharmaraj 3.Jayaprakash 4.Chinnammal 5.Saleem

...Respondents/Petitoners/R1

PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the award and Decree dated 07.07.2011 made in M.C.O.P.No.494 of 2005 on the file of the Motor Accident Claims Tribunal (Additional District Judge and Special Judge for E.C.Act Cases) at Salem.

For Appellant : Mrs.R.Sreevidhya For Respondents : Mr.S.P.Yuvaraj for R1 to R3 R5 - Exparte R4 - Died

J U D G M E N T

This Civil Miscellaneous Appeal has been filed against the Judgment and Decree dated 07.07.2011 made in M.C.O.P.No.494 of 2005 on the file of the Motor Accident Claims Tribunal (Additional District Judge and Special Judge for E.C.Act Cases) at Salem.

2. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the Tribunal.

3. The learned counsel for the second respondent contended that the driver of the lorry, owned by the first respondent, had

driven in a rash and negligent manner and caused accident, due to which the deceased died and the claimant filed the claim petition.

4. The case of the second respondent is that the vehicle classified as heavy goods motor vehicle for the purpose of carrying hazardous goods and as such, the driver should possess the license with special endorsement for driving the said vehicle. The R.W.2 / the Motor Vehicle Inspector categorically deposed that the vehicle owned by the first respondent is classified for the purpose of carrying hazardous goods. Therefore, the Tribunal ought to have ordered for pay and recovery from the first respondent, since the driver did not possess the valid license to drive the goods vehicle which carries hazardous goods.

5. A perusal of the deposition of R.W.2 revealed that the vehicle owned by the first respondent is classified for the purpose of carrying the hazardous goods. Therefore, the driver should possess the license with specific endorsement to drive the vehicle which is used for the purpose of carrying hazardous goods. Admittedly, the driver of the lorry owned by the first respondent did not possess any license to drive the vehicle which carried hazardous goods. The driver possessed the driving license to drive heavy goods motor vehicle. The driving license was marked as Ex.R2 and it has no endorsement for carrying hazardous goods. Therefore, the Tribunal failed to order for recovery of award amount from the first respondent.

6. In the result the Civil Miscellaneous Appeal is partly allowed as follows:- (i) The fifth respondent is liable to pay compensation as awarded by the Tribunal and as such, the Appellant / Insurance Company is directed to pay the compensation to the claimants with liberty to recover the same from the fifth respondent in the manner known to law.

(ii) The award amount will carry interest at the rate of 7.5% per annum from the date of the claim petition till the date of deposit.

(iii) The Appellant / Insurance Company is directed to deposit the award amount, less the amount, if any already deposited, along with accrued interest, within a period of six weeks from the date of receipt of a copy of this Judgment. (iv) On such deposit, the appellant is permitted to withdraw the amount awarded as above, by filing a proper application before the Tribunal.

(v) There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar True Copy// Sub Assistant Registrar rna To The Additional District Judge and Special Judge for EC Act cases, Motor Accidents Claims Tribunal, Salem.

Copy to The Section Officer, V.R.Section, Madras High Court, Chennai.

+1cc to Mrs.R.Sreevidhya, Advocate, S.R.No.25844 +1cc to Mr.S.P.Yuvaraj, Advocate, S.R.No.25637 C.M.A.No.1164 of 2012 and M.P.No.1 of 2012 VSN-II[co] NSK 22/11/2021