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Judgment
P. Devadass
Since both the appeals arose out of a common road accident, they were heard together and are being disposed of by this common Judgment. In these appeals, the insurer of mini door auto belonging to the second respondent disputes its liability to pay the award amount.
On 20.3.2007, one Sivasankaran drove the Hero Honda bike keeping his friend Palanisamy, as his pillion-rider. From the opposite side, a mini door auto belonging to one Paul Raj, came driven in a rash and negligent manner by one Jacob Nirmal Raj. Road accident took place. In this, Sivasankaran and Palanisamy sustained multiple injuries.
In M.C.O.P. No. 250 of 2007, Palanisamy and in M.C.O.P. No. 256 of 2008, Sivasankaran claimed compensation. The Tribunal awarded Rs. 3,59,700/- to Palanisamy and Rs. 49,000/- to Sivasankaran.
The Insurance Company directed appeal in C.M.A. (MD) No. 1513 of 2010 as against award of compensation to Palanisamy and appeal in C.M.A. (MD) No. 1514 of 2010 as against award of compensation to Sivasankaran.
Learned counsel for the appellant would contend that at the time of accident, the driver of mini door auto did not possess valid driving licence to drive that type of vehicle. Thus, there is violation of terms and conditions of policy. So, the Company need not pay them compensation amount on behalf of the insured. The amounts awarded to them are also excessive.
No appearance for the claimants.
I have anxiously considered the arguments, perused the materials on record and the impugned common award of the Tribunal.
The persons came in the Hero Honda bike have sustained multiple injuries. It is because of the rash and negligent driving of the auto driver. The auto driver was having L.M.V. driving licence. The witness from RTO Office stated that with L.M.V. driving licence, the driver is not entitled to drive this type of vehicle.
Both the claimants are third parties. They are not party to the contract of insurance between the appellant and second respondent. The terms and conditions in the contract of insurance, naturally not known to the claimants. They had no means to know that the auto is being driven by a person, not holding an effective driving licence. On the date of accident, the insurance policy was in force. There is no evidence to show that the owner of the auto willfully placed the auto in the possession of a person, who is not holding effective driving licence. It is only the auto owner, who could be blamed for having placed the vehicle in the possession of Vimal Raj, if the knowledge of his having such a driving licence could be attributable to him. However, no evidence on that aspect.
So far as the claimants are concerned, they are third parties. The insurance was also in force. In the circumstances, merely because of the alleged fault of the auto owner, the claimants cannot be directed to seek compensation only from the auto owner, when especially there is indemnification imposed upon the Insurance Company by a statute (See Section 149 M.V. Act).
In the facts and circumstances, it is a fit case that the principle laid down in New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., ] and in The United India Insurance Co. Ltd. Vs. S. Saravanan (Infirmity) rep. by his wife, NF.S. Lalitha and Ravi, ] could be invoked, that is to say, a direction to the Insurance Company to pay the compensation amount first to the claimants and recover it from the owner of the offending vehicle.
As regards the quantum, the Tribunal after taking into account the nature and extent of the injuries, medical evidence, their sufferings, age, occupation and income of the claimants and other relevant aspects, determined the quantum of compensation. On the whole, the amount awarded is neither less nor high, but, just, fair and reasonable. In the result, the common award of the Tribunal is upheld with modification. The appellant shall first pay the compensation amount to the first respondent in both the C.M.As. then, recover the amounts from the second respondent. For this purpose, the appellant need not file a separate suit. Based on the direction in this Judgment itself, the appellant can file Execution Petition before a Competent Court. Even it can attach the offending auto also. Since the entire amount has been deposited by the appellant, the first respondent in both the C.M.As. are permitted to withdraw their entire amount, less amount, if any already withdrawn. No costs. The Civil Miscellaneous Appeals are disposed of accordingly. Consequently, the connected Miscellaneous Petitions are closed.