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Bajaj Allianz General Insurance Co. Ltd., Rep. by its Branch Manager, Susee Auto Sales & Service Pvt. Ltd., Madurai v/s V. Dukkaiammal & Others


Company & Directors' Information:- BAJAJ AUTO LIMITED. [Active] CIN = L65993PN2007PLC130076

Company & Directors' Information:- E R AUTO PRIVATE LIMITED [Active] CIN = U34300HR2002PTC035002

Company & Directors' Information:- SUSEE AUTO LTD [Active] CIN = U60210TN1962PLC004796

Company & Directors' Information:- K Y AUTO PRIVATE LIMITED [Active] CIN = U50300JK2013PTC003849

Company & Directors' Information:- J. S. B. AUTO PRIVATE LIMITED [Active] CIN = U50300DL2010PTC198144

Company & Directors' Information:- T & R AUTO PRIVATE LIMITED [Active] CIN = U50200TG2012PTC082553

Company & Directors' Information:- SUSEE AUTO SALES & SERVICE PRIVATE LIMITED [Active] CIN = U50101TN2000PTC045075

Company & Directors' Information:- GENERAL SALES PRIVATE LIMITED [Active] CIN = U51909DL1965PTC004345

Company & Directors' Information:- D R D B AUTO PRIVATE LIMITED [Strike Off] CIN = U74899DL1988PTC032028

Company & Directors' Information:- AUTO SALES INDIA LIMITED [Active] CIN = U50300AS2001PLC006498

Company & Directors' Information:- A-1 AUTO PVT. LTD [Active] CIN = U51502MH2006PTC165934

Company & Directors' Information:- AUTO INDIA PRIVATE LIMITED [Active] CIN = U65991TN1984PTC010923

Company & Directors' Information:- Z-AUTO PRIVATE LIMITED [Active] CIN = U50500UP2021FTC153664

Company & Directors' Information:- K V AUTO LTD [Strike Off] CIN = U28932PB1994PLC014522

Company & Directors' Information:- P S AUTO SALES INDIA PRIVATE LIMITED [Active] CIN = U50300UP2005PTC030677

Company & Directors' Information:- AUTO SALES PRIVATE LIMITED [Active] CIN = U52334MH1998PTC116724

Company & Directors' Information:- K G N AUTO PRIVATE LIMITED [Active] CIN = U74900PN2015PTC157675

Company & Directors' Information:- BAJAJ SALES PRIVATE LIMITED [Active] CIN = U51909WB2010PTC144504

Company & Directors' Information:- J. S. AUTO PRIVATE LIMITED [Active] CIN = U34102UP1986PTC008173

Company & Directors' Information:- P S AUTO PRIVATE LIMITED [Active] CIN = U34300MH1999PTC120052

Company & Directors' Information:- V. B. AUTO SALES PRIVATE LIMITED [Active] CIN = U50300UR2008PTC032624

Company & Directors' Information:- INDIA SALES AND SERVICE PRIVATE LIMITED [Under Liquidation] CIN = U24139UP1952PTC002466

Company & Directors' Information:- Y Z AUTO SALES PRIVATE LIMITED [Strike Off] CIN = U50100MH2002PTC137878

Company & Directors' Information:- P M C AUTO LIMITED [Strike Off] CIN = U34300DL1995PLC071849

Company & Directors' Information:- B C C AUTO PVT LTD [Active] CIN = U74899DL1992PTC051439

Company & Directors' Information:- H H AUTO PRIVATE LIMITED [Amalgamated] CIN = U34100DL2009PTC192880

Company & Directors' Information:- M M AUTO PRIVATE LIMITED [Strike Off] CIN = U50300UP1988PTC009527

Company & Directors' Information:- U P SALES AND SERVICE LIMITED [Strike Off] CIN = U29221UP1969PLC003303

Company & Directors' Information:- G B AUTO PRIVATE LIMITED [Strike Off] CIN = U50400MH1998PTC114977

Company & Directors' Information:- M C AUTO PVT LTD [Under Process of Striking Off] CIN = U34300DL1977PTC008716

Company & Directors' Information:- E N B AUTO (INDIA) PRIVATE LIMITED [Active] CIN = U34300PB1988PTC008040

Company & Directors' Information:- K D R AUTO PRIVATE LIMITED [Active] CIN = U34300DL2005PTC132732

Company & Directors' Information:- K S R AUTO PRIVATE LIMITED [Active] CIN = U34300PN2011PTC140367

Company & Directors' Information:- J P AUTO PVT LTD [Strike Off] CIN = U50402WB1991PTC052147

Company & Directors' Information:- E G AUTO PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1987PTC027016

Company & Directors' Information:- R AND H AUTO INDIA PVT LTD [Active] CIN = U74899DL1982PTC013349

Company & Directors' Information:- U A AUTO SALES PRIVATE LIMITED [Strike Off] CIN = U50300MH2002PTC138394

Company & Directors' Information:- D D AUTO PRIVATE LIMITED [Active] CIN = U74899DL1985PTC022306

Company & Directors' Information:- C R AUTO PRIVATE LIMITED [Strike Off] CIN = U34300PB1997PTC020137

Company & Directors' Information:- B S K AUTO PRIVATE LIMITED [Strike Off] CIN = U29246PB1997PTC020704

Company & Directors' Information:- K AND K AUTO PRIVATE LIMITED [Active] CIN = U29199TZ1996PTC007431

Company & Directors' Information:- J K M AUTO PRIVATE LIMITED [Strike Off] CIN = U34300DL2005PTC143914

Company & Directors' Information:- K AND K AUTO PRIVATE LIMITED [Not available for efiling] CIN = U34300DL1988PTC032426

Company & Directors' Information:- AUTO REP PRIVATE LIMITED [Strike Off] CIN = U35990KA1986PTC007969

Company & Directors' Information:- H B AUTO (INDIA) PRIVATE LIMITED [Active] CIN = U50401OR1988PTC002075

Company & Directors' Information:- S B G AUTO PRIVATE LIMITED [Strike Off] CIN = U50101MH2006PTC158566

Company & Directors' Information:- O P AUTO PRIVATE LIMITED [Active] CIN = U51103DL2008PTC181391

Company & Directors' Information:- D K S AUTO PVT LTD [Strike Off] CIN = U34300DL2001PTC111465

Company & Directors' Information:- C L K AUTO PRIVATE LIMITED [Strike Off] CIN = U34300DL2003PTC118551

Company & Directors' Information:- K B H AUTO PRIVATE LIMITED [Strike Off] CIN = U74899DL2000PTC107258

Company & Directors' Information:- AUTO SERVICE LTD. [Dissolved] CIN = U99999MH1922PTC001007

Company & Directors' Information:- AUTO INDIA LIMITED [Not available for efiling] CIN = U99999MH1948PLC006176

Company & Directors' Information:- R K AUTO INDIA PVT LTD [Strike Off] CIN = U99999DL2000PTC901836

    C.M.A.(MD)No. 1166 of 2013 & M.P.(MD)No. 1 of 2013

    Decided On, 23 October 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MS. JUSTICE V.M. VELUMANI

    For the Appellant: K.R. Shiva Shankari, Advocate. For the Respondents: R1 to R3, A. Theethar, Advocate, R4, No Appearance.



Judgment Text

(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 06.09.2012, made in M.C.O.P.No.1167 of 2007 on the file of the Motor Accident Claims Tribunal (VI Additional District Court), Madurai.)

1. This Civil Miscellaneous Appeal has been filed against the award dated 06.09.2012, made in M.C.O.P.No.1167 of 2007 on the file of the Motor Accident Claims Tribunal (VI Additional District Court), Madurai.

2. The appellant Insurance Company is the second respondent in M.C.O.P.No.1167 of 2007. The respondents 1 to 3 filed the said claim petition claiming a sum of Rs.3,00,000/- as compensation for the death of one Veeran.

3. The Tribunal considering the pleadings and oral and documentary evidence, held that the accident occurred only due to rash and negligent riding by the rider of the motorcycle belonging to the fourth respondent and the appellant being the insurer of the motorcycle is liable to pay compensation to the respondents 1 to 3/claimants and considering the age and avocation of the deceased, awarded Rs.3,00,000/- as compensation.

4. Against the said award dated 06.09.2012, the appellant Insurance Company has come out with the present appeal.

5. The learned counsel appearing for the appellant contended that the Tribunal erred in fixing the liability on the appellant. The rider of the motorcycle at the time of accident did not possess any valid driving licence. The Tribunal erred in holding that the appellant ought to have examined the Official from the Regional Transport Office to prove that the rider of the motorcycle did not possess valid driving licence at the time of accident. In any event, the Tribunal ought to have ordered pay and recovery, since the owner and the rider of the motorcycle did not respond to the registered letters sent and summons issued to them.

6. In support of her contentions, the learned counsel appearing for the appellant relied on the following judgments:-

(i) Branch Manager, National Insurance Co. Ltd. Vs. Shanmugathevar and another reported 2015 (2) TN MAC 240, wherein at Paragraphs 12 to 14, it has been held as follows:-

'12. It is well settled that the Hon'ble Apex Court and this Court in a catena of decisions, have consistently taken a view that the insurer shall pay the compensation and thereafter, they shall recover the amount from the vehicle owner, whenever the compensation was ordered on the ground that the driver did not posses valid and effective driving licence.

13. In ICICI Lombard General Insurance Company Ltd., Chennai, and others Vs. Annakkili and others, reported in 2012 (1) TN MAC 226, this Court following the judgments of the Hon'ble Supreme Court and also the decisions of the various High Courts, held that payment of compensation to a third party accident victim is statutory in nature and that there cannot be any total exoneration. This Court has also held that if the insurance company is able to discharge the burden of proof that the vehicle being driven by an unlicensed person and that there was a breach, pay and recovery alone can be made. The said legal position has been reiterated in S.Iyyapan Vs. United India Insurance Co. Ltd., 2013 (2) TN MAC 262 (SC) : 2013 [7] SCC 62.

14. In view of the categorical pronouncement of this Court and the Hon'ble Apex Court as referred to above, I do not find any illegality in the order of the Tribunal directing the appellant to pay compensation and recover the same from the second respondent. The Civil Miscellaneous Appeal is accordingly dismissed. No costs.'

(ii) National Insurance Company Limited, Bhavani Vs. Samiyathal and others reported in 2004 (1) TN MAC (DB) 455, wherein at Paragraph 6, it has been held as follows:-

'6. .... In such a circumstance, as rightly contended by the learned counsel for the appellant/Insurance Company, though the appellant had discharged the initial responsibility in proving the fact that the driver of the vehicle had no valid driving licence, the said fact had not been discharged either by the claimants or by the owner of the vehicle. However, as observed by the Hon'ble Supreme Court in New India Assurance Co. Ltd., v. Kamla, reported in 2001 ACJ 843, the insurance company is liable to pay to the third parties irrespective of the fact that there has been any breach of violation of the policy conditions. In the event that there is a breach/violation of the policy conditions, the insurance company can recover from the insured the amount so paid to the third parties, if as per the policy conditions, the insurer had no liability to pay such sum. The Tribunal, by relying on the very same judgment, rightly directed the insurance company to pay the compensation amount to the claimants. However, the grievance of the appellant is that the Tribunal has not issued any direction to the Insurance Company to recover the amount from the insured. In 2001 ACJ 843 (cited supra), the Supreme Court issued a direction to the Claims Tribunal to decide the question whether the insurance company is entitled to recover the amount from the owner of the vehicle on account of the vehicle being driven by a person who had no valid licence to drive the vehicle after affording opportunity to all the parties concerned. Learned counsel for the appellant has also relied on a Division Bench decision of this Court rendered in C.M.A.No.627 of 1999, dated 03-08-2001 (M/s.National Insurance Co. Ltd. v. Sakthi and Others (P.Sathasivam and A.Subbulakshmy, JJ). Before the Division Bench similar question was raised by the appellant/insurance company. After referring to the decision of the Supreme Court in New India Assurance Company, Shimla v. Kamla and Others, 2001 ACJ 843, the Division Bench has held that, "the insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured, if there is violation of any policy condition". The Division Bench has also held that "the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to third parties, if there was any breach or violation of the policy condition on account of the vehicle being driven without a valid licence." We are in respectful agreement with the above view. In the present case, we have already referred to the specific stand taken by the insurance company in their counter statement, the evidence of R.W.1, their officer, Exs.R-1 to R- 5, and the conduct of the driver and the owner in not responding to the request of the insurance company for production of valid licence to drive a lorry. Accordingly, as observed by the Supreme Court in 2001 ACJ 843 (cited supra), we hold that the insurance company is liable to pay compensation to the claimants-respondents 1 to 4 herein and on account of violation/breach of terms of insurance policy, namely, the lorry being driven without a valid licence, the appellant/insurance company is entitled to recover from the insured.'

7. Per contra, the learned counsel appearing for the respondents 1 to 3 contended that the respondents 1 to 3 have proved that the accident occurred only due to rash and negligent riding by the rider of the motorcycle. The appellant has taken a stand that the rider of the motorcycle did not possess driving licence at the time of accident, but failed to substantiate the said claim. The award of the Tribunal is based on the evidence let in by the parties and prayed for dismissal of the Civil Miscellaneous Appeal.

8. I have heard the learned counsel appearing for the parties and perused the materials available on record.

9. From the materials available on record, it is seen that the accident occurred only due to rash and negligent riding by the rider of the motorcycle belonging to the fourth respondent. The same is not challenged in the appeal. The contention of the learned counsel for the appellant is that the rider of the motorcycle did not possess driving licence at the time of accident and therefore, the appellant is not liable to pay any compensation to the respondents 1 to 3/claimants. The appellant has taken a specific plea that they examined R.W.1, Assistant from the Regional Transport Office, In- charge of Records in the said Office to prove that at the time of accident, the rider of the motorcycle did not possess valid driving licence. From the evidence, it is seen that R.W.1 has deposed that Learner's Licence was issued to Raguvaran, rider of the motorcycle at the time of accident, i.e., on 17.02.2007 and the same will be in force for six months. R.W.1 has not stated that no Learner's Licence was issued to the said Raguvaran before 17.07.2007 and at the time of accident, the said Raguvaran did not possess any Learner's Licence. From the evidence of R.W.1, it is seen that Learner's Licence will be retained by RTO only for one year from the date of issuance and thereafter, it will be destroyed. R.W.1 has given evidence on 27.06.2012. On that date, there is no record in Regional Transport Office whether the Learner's Licence was issued to Raguvaran before 17.07.2007. R.W.1 has not stated that Learner's Licence will be issued only once and thereafter, no Learner's Licence will be issued. From the evidence of R.W.1, it cannot be said that no Learner's Licence was issued prior to 17.07.2007 and the said Raguvaran did not possess Learner's Licence on the date of accident. From the materials on record, it is seen that the appellant has issued notices to both the rider and the owner of the motorcycle and the same were returned by the Postal Authority. In such circumstances, the judgment of this Court relied on by the learned counsel for the appellant is applicable to the facts of the present case. The appellant has discharged the

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initial responsibility not proving the fact that the rider of the motorcycle did not have valid driving licence at the time of accident. The fourth respondent or the rider of the motorcycle has not produced any driving licence. Applying the ratio laid down by the Division Bench of this Court in National Insurance Company Limited, Bhavani Vs. Samiyathal and others reported in 2004 (1) TN MAC (DB) 455, the award of the Tribunal is modified directing the appellant to pay compensation to the respondents 1 to 3/claimants at the first instance and thereafter, recover the same from the fourth respondent as per the mode of recovery incorporated in Oriental Insurance Co. Ltd., vs. Nanjappan and others reported in (2004) 13 Supreme Court Cases 224. On such deposit being made, the respondents 1 to 3/claimants are permitted to withdraw their respective shares with proportionate interest and costs by making necessary applications before the Tribunal. 10. In the result, this Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
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