J. Rajesh v. S. Senthilkumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.12.2020

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.2471 of 2014 J. Rajesh ... Appellant/Petitioner Vs.

1.S. Senthilkumar 2.J. Sidharth 3.ICICI Lombard General Insurance Co. Ltd., Kannankeri Estate, 3rd Floor, Shanmugam Road, Marine Drive, Cochin.

... Respondents/Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 21.10.2009, made in M.C.O.P. No.564 of 2007, on the file of the III Additional Sub Court, (Motor Accident Claims Tribunal) Coimbatore.

For Appellant : Mr. Ma.P. Thangavel For Respondents: Mrs. R. Sree Vidhya (For R3) R1 : Not ready in Notice R2 : Not ready in Notice

J U D G M E N T

The matter is heard through "Video Conferencing". This appeal has been filed against the award dated 21.10.2009, made in M.C.O.P. No.564 of 2007, on the file of the III Additional Sub Court, (Motor Accident Claims Tribunal) Coimbatore.

2.The appellant filed M.C.O.P. No.564 of 2007, on the file of the III Additional Sub Court, (Motor Accident Claims Tribunal) Coimbatore, claiming a sum of Rs.5,00,000/- as

compensation for the injuries sustained by him in the accident that took place on 25.09.2006.

3.According to the appellant, on the date of accident at about 9.45 am, when he was riding his Hero Honda Motorcycle bearing Registration No. TN-38-AF-1643, in Sakthi Road, while crossing Deepa Fancy Store, the 1st respondent, driver of the Indica Car bearing Registration No. KL-07-AS-6219, belonging to the 2nd respondent, drove the same in a rash and negligent manner, and dashed against the Motorcycle and caused accident. The accident occurred due to rash and negligent driving by the 1st respondent, driver of the Indica Car. In the accident the appellant suffered multiple injuries and fracture. For the injuries suffered by him, he has filed the claim petition, claiming compensation against the respondents as driver, owner and insurer of the said Indica Car.

4.The respondents 1 and 2 remained exparte before the Tribunal.

5.The 3rd respondent - Insurance Company filed counter statement and denied all the averments made by the appellant. The 3rd respondent denied the manner of the accident. According to the 3rd respondent, the 1st respondent did not possess valid driving license to drive the offending vehicle and Indica Car did not have valid insurance coverage and the same was not insured with them, at the time of accident. Hence, the 3rd respondent is not liable to indemnify the 2nd respondent for the injured in the accident. The accident did not occur due to rash and negligent driving by the 1st respondent/driver of the Indica Car. In any event, the appellant has to prove his age, income and avocation, injuries sustained in the accident, treatment taken for the same, to claim compensation. The total compensation claimed by the appellant is excessive and prayed for dismissal of the claim petition.

6.Before the Tribunal, the appellant examined himself as P.W.1 and examined Doctor as P.W.2 and marked 17 documents as Exs.P1 to P17. The respondents examined two witnesses as R.W.1 and R.W.2 and marked 6 documents as Exs.R1 to R6. 7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the 1st respondent, driver of the Indica Car belonging to the 2nd respondent and directed the 2nd respondent to pay a sum of Rs.1,05,346/- as compensation to the appellant and dismissed the claim petition as against the 3rd respondent-Insurance Company for violation of policy condition by the 2nd respondent.

8.Challenging the portion of the award dismissing the claim petition as against the 3rd respondent-Insurance Company and not being satisfied with the amounts awarded by the Tribunal in the award dated 21.10.2009, made in M.C.O.P. No.564 of 2007, the appellant has come out with the present appeal. 9.The learned counsel appearing for the appellant contended that for non-possession of driving license by the 1st respondent, the Tribunal ought not to have exonerated the 3rd respondentInsurance Company from its liability. The Tribunal ought to have seen that the 3rd respondent-Insurance Company failed to prove that the 1st respondent, driver of the offending vehicle did not possess valid driving license. The appellant was aged 30 years and was working as a Lab Technician in Jothi Lab and was earning a sum of Rs.

15,000/- per month at the time of accident. P.W.2 Doctor assessed that the appellant suffered 36% disability. The Tribunal erroneously granted Rs.1,000/- per percentage of disability, instead of adopting multiplier method. The appellant has taken treatment as in-patient in Hospital from 25.09.2006 to 30.09.2006. The Tribunal has not granted any amount towards attendant charges and loss of amenities. The amounts granted by the Tribunal for extra nourishment and transportation are meagre and prayed for setting aside the portion of the award exonerating the 3rd respondent-Insurance Company and for enhancement of the compensation.

10.The respondents 1 and 2 remained exparte before the Tribunal and hence, notice to the respondents 1 and 2 are dispensed with.

11.Per contra, the learned counsel appearing for the 3rd respondent-Insurance Company contended that the 3rd respondent proved that at the time of accident, the 1st respondent did not possess driving license to drive the offending vehicle by examining R.W.2 - Official from R.T.O. The 1st respondent possessed only driving license to drive two wheeler. The Tribunal has considered the evidence of R.W.2 and the documents marked by the 3rd respondent and rightly exonerated the 3rd respondent. There is no error in exonerating the 3rd respondentInsurance Company from its liability. The amounts awarded by the Tribunal is not meagre and prayed for dismissal of the appeal against the 3rd respondent.

12.Heard learned counsel appearing for the appellant as well as the 3rd respondent-Insurance Company and perused the materials available on record.

13.From the materials on record, it is seen that it is the contention of the appellant that while he was riding his Motorcycle, the 1st respondent drove the Indica Car in a rash and negligent manner and dashed against the Motorcycle in which the appellant was riding. The Tribunal considering the oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the 1st respondent, driver of the Indica Car. It is the contention of the 3rd respondent that the 1st respondent did not possess driving license to drive four wheeler and possessed only driving license to drive a two wheeler. They proved the said contention by examining R.W.2 - Official from R.T.O and marking original driving license of Ex.P7 as Ex.R6. The Tribunal considering Ex.P7 and Ex.

R6, held that both the Exhibits are one and the same and the license was issued to the 4th respondent only to drive two wheeler. The appellant has produced xerox copy of the driving license to the 1st respondent. The portion of the said license showing type of the vehicle was torn off. The Tribunal considering the above materials, held that the 3rd respondent has proved that the 1st respondent did not possess driving license at the time of accident and exonerated the 3rd respondent-Insurance Company from its liability. A three Judges Bench of the Hon'ble Apex Court in a judgment reported in AIR 2020 SC 4453 [Beli Ram Vs.

Rajinder Kumar], has held that when driving license is not renewed and accident has occurred after expiry of driving license and the driver of the vehicle did not possess driving license, the Insurance Company is not liable to pay compensation, as owner of the vehicle has committed breach of terms of policy. In view of the judgment of the Hon'ble Apex Court referred to above, there is no error in the award of the Tribunal exonerating the 3rd respondent-Insurance Company from its liability and fixing liability on the 2nd respondent, owner of the offending vehicle, warranting interference by this Court.

14.As far as the quantum of compensation is concerned, the Tribunal considering the nature of injuries, disability suffered by the appellant and treatment taken, has awarded compensation which are not meagre, warranting no interference by this Court. 15.In the result, the appeal is dismissed and the amount awarded by the Tribunal at Rs.1,05,346/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit is confirmed. The 2nd respondent is directed to deposit the award amount, along with interest and costs, less the amount already deposited, within a period of six weeks from

the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.564 of 2007. On such deposit, the appellant is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal. No costs. Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar gsa To The III Additional Subordinate Judge, (Motor Accident Claims Tribunal), Coimbatore.

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

+1cc to Mr.Ma.P.Thangavel, Advocate Sr.38517 +1cc to Mrs.R.Sreevidhya, Advocate Sr.38754 C.M.A.No.2471 of 2014 gj[co] srg 27/08/2021