Pushpa Debbarma And Ors. vs Md. Phiroz Khan And Anr.

Dissatisfied with the compensation of Rs.20,06,000/- awarded by the Motor Accident Claims Tribunal, Court No.1, West Tripura, Agartala in the judgment dated 23-11-2016 of T.S.(MAC) No.206/2013, the claimant-appellants are preferring this appeal.

On 7-5-2013 at about 4 PM, when the deceased was going to the shop of a mechanic at Mara Chowmohani, Ranirbazar, by pushing his damaged motor bike bearing registration No.TR-01-F-1133 for repair, a truck bearing registration No.TR- 01-H-1928 coming from the opposite direction in a high speed with rash and negligent driving dashed against him. As a result, he sustained injuries on his chest, head, spinal cord and other parts of his body. He was rushed to Ranirbazar PHC and thereafter to GBP Hospital, Agartala where he was admitted as an indoor patient. He, however, succumbed to his injuries on the same day. The police registered Ranirbazar P.S. Case No.17/2013 U/s 279/304-A IPC in connection with the accident. The deceased is survived by his wife, his minor son, his father and mother. He was aged about 24 years at the time of his death and was allegedly earning a monthly income of Rs.50,000/- as a businessman. The appellants claimed a compensation of Rs.40,00,000/- over the death of the deceased.

Since the grievances of the appellants, as projected by Mr. DR Choudhury, the learned counsel, are directed against the monthly income of Rs.9,000/- of the deceased as assessed by the Tribunal and against the fastening of the liability to satisfy the award upon the owner of the vehicle (respondent No.1 herein) and not upon the insurer, I will straightaway refer to the findings of the Tribunal in this behalf. The Tribunal recorded the finding that the appellants could not produce any documentary evidence to substantiate their allegation that the deceased was earning Rs.50,000/- per month as a businessman. He, therefore, assessed the income of the deceased at Rs.9,000/- per month. The appellants claimed that the deceased was a businessman by occupation. No trade licence or sales tax register or any evidence of the like nature was ever produced by them to show that he was running a shop at the time of the accident. In my opinion, in the absence of adequate evidence, I cannot upset the finding of the Tribunal. Coming now to the attack against the decision of the Tribunal to direct the respondent No.1 (owner of the offending vehicle) to pay the compensation to the appellants on the ground that the driver of the vehicle was not having a driving license for Light Motor Vehicle(LMV) at the time of the accident and that there was thus breach of policy condition thereby ruling out the liability whatsoever of the respondent No.2 to pay and recover. The following are the findings of the Tribunal in this regard:

"10. As per charge sheet the vehicle was driven by Kushajoy Tripura. On perusal of the Driving Licence marked 'Exbt.C', it is found that he was authorized to drive a light motor vehicle only w.e.f. 11.03.2009. But the accident had occurred involving the truck bearing registration No. TR-01-H- 1928 which is a heavy vehicle driven by Sri Kushajoy Tripura violating the terms and conditions of the policy. As such the owner of the offending vehicle bearing registration No. TR-01-H-1928 is liable to pay compensation to the claimant petitioners."

In my opinion, the view taken by the Tribunal is contrary to the law laid down by the Apex Court in a long line of decision holding that it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. There is thus force in the contention of the learned counsel for the appellants in this behalf. 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. If any authority is needed, I may conveniently refer to the decision in S. Iyyapan v. United India Insurance Co. Ltd. and another, (2013) 7 SCC 62, the relevant portions whereof read thus:

"16. The heading "Insurance of Motor Vehicles against Third-Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of the 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.

Reading the provisions of Sections 146 and 147 of 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 149 of 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."

For what has been stated in the foregoing, this appeal is partly allowed. The insurer-respondent shall pay now the compensation amount together with the interest accrued thereon as awarded by the Tribunal and may, if so advised, recover the same from the insured in the manner laid down in S. Iyyapan(supra). The impugned judgment, in so far as it directed the insured to satisfy the award is concerned, stands set aside. The insurer shall deposit the compensation amount with the interest accrued thereon to this Registry within a period of two months for payment to the appellants. The disbursement of the compensation amount shall be in accordance with the directions of the Tribunal. No cost. Transmit the L.C. record.