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Judgment
J.A.K. Sampathkumar, J.—This appeal is filed against the award dated 28.08.1passed in M.A.C.T.O.P. No. 282 of 1995 on the file of the Principal Subordinate Judge, (Motor Accidents Tribunal), Tirunelveli, in and by which the learned subordinate Judge awarded a sum of Rs. 50,000/- against the claim of Rs. 1,00,000/- for injuries sustained to the petitioner in road accident.
For convenience, the parties are referred arrayed in the claim petition. On 15.04.1994, at about 10.30 hrs the petitioner was riding his bicycle from Vannarapettai to Palayamkottai on Tirunelveli Junction to Palayamkottai main road from West to East. At that time, a Van bearing Registration No. TN.69-6667 belonging to the first respondent insured with the second respondent driven by its driver in rash and negligent manner, which was coming from East to West, dashed against the petitioner and as a result of this, the petitioner was thrown away from the cycle and sustained multiple injuries all over the body. Immediately, he was taken to Tirunelveli Medical college hospital and admitted as inpatient from 15.04.1994 to 14.05.1994. The petitioner was aged about 32 years and he was hale and health free from any ailments at the time of the accident. He was working as a sweeper in Palayamkottai Muncipal office and was earning a sum of Rs. 1,000/- per month. Hence, the petitioner estimates the compensation of Rs. 1,00,000/- for injuries sustained by him in the road accident.
The second respondent resisted the claim on the following grounds. At the time of the accident, the vehicle was entrusted to TVS workshop for repair and the vehicle was under the control of TVS workshop foreman cum driver Venkatachalam with trial plate No. TCR.TN.72.TC.011. So, the accident has happened during the time when the van was taken for trial by the foreman.
The policy does not cover use for organised tracing, pace making, reliability trial or speed testing etc. Since there is violation of policy condition, the second respondent is not liable to pay any compensation as claimed by the claimant. At the time of accident, the driver of the first respondent has not in custody of the vehicle and the said vehicle was in the custody of one Venkatachalam, foreman cum driver of TVs workshop. Therefore, the liability has to be fixed against TVS workshop and not against the driver of the first respondent. The claim of the petitioner is therefore liable to be dismissed.
P.Ws.1 and 2 were examined as witnesses on the side of the petitioner and Exs.A1 to A.7 were marked. one witness was marked on the side of the respondent and one document was marked on the side of the respondent. The lower court after analysing the evidence, found that the plaintiff entitled to compensation of Rs. 50,000/- against the claim of Rs. 1,00,000/- and passed award accordingly. The present appeal is filed by the second respondent Insurance company against the said award.
Heard Mr.R.Srinivasan the learned Counsel for the petitioner as well as Mr.P.Senthur Pandian the learned Counsel for the respondents.
Points:
The point for determination is
Whether the vehicle was under the custody of the driver of the first respondent in respect of the van bearing Registration No. TN.69-6667 or under the custody of foreman cum driver of TVS workshop with reference to the vehicle bearing plate No. TCR.TN.72.TC.011 at the time of accident?;
Whether the second respondent Insurance company is not entitled to pay any compensation due to the violation under Clause 10 of the policy condition by the first respondent?; and
Whether the first respondent is the owner of the vehicle at the time of the accident in the given sets of fact?
Point No. 1:
No doubt, it is true that the first respondent is the owner of the van bearing Registration No. TN.69-6667 involved in the road accident. The accident took place on 15.04.1994 at about 10.30 a.m. on Vannarapattai to Palayamkottai at the junction of Tirunelveli Palayamkottai Main road near Murugankurichi, Narayana lodge. At the time of accident, the petitioner was riding his bicycle from West to East and the van which was coming from East to West dashed against the cycle resulting to accident. There is no dispute regarding these facts.
Learned Counsel for the Insurance Company has submitted that at the time of accident, the vehicle was not under custody of the first respondent and it was under the custody of TVS workshop for repair. He further submitted that TVS workshop foreman cum driver Venkatachalam with trial plate No. TCR.TN.72.TC.0111 took the vehicle on road and invited the accident. To sustain his claim he relied on Ex.R1, the claim form given by the owner of the vehicle in this regard. The learned Counsel for the respondents confronted the claim of the learned Counsel for the appellant stating that there is absolutely no evidence on record to show that at the time of accident the vehicle namely van driven with trial plate No. TCR.TN.72.TC.011 and that as per the police record, the vehicle involved in the accident bearing Registration No. TN.69-6667 only and not as stated by the learned Counsel for the appellant and such a contention of the learned Counsel for the appellant is devoid of merit. In this context, it is useful to refer the contents of F.I.R. and police records to find out whether there is any truth in the contention of the learned Counsel for the appellant. In the F.I.R. which is Ex.P.1, I find that the vehicle concerned in this case is the vehicle bearing Registration No. TN.69-6667 only. Medical certificate is marked as Ex.P.2. In that medical certificate also the Van bearing Registration No. is shown as TN.69-6667. Ex.P5 is the copy of the charge sheet, in this document also the vehicle No. is shown as TN.69- 6667. The documents filed herein shows that the vehicle involved in this case is only with reference to the van bearing Registration No. TN.69-6667. Contra to this, there is no evidence on record to show that the vehicle involved in the accident was having number plate TCR.TN.72. TC.011.
In this case, the owner of the vehicle is set exparte. He has not submitted to this Court to sustain the claim of the Insurance Company. There is absolutely no evidence on record to show that the vehicle bearing Registration No. TN.69-6667 was entrusted to workshop for repair at the time of accident. It is a certain case of the Insurance Company that the accident took place only when the said vehicle was under the custody of TVS workshop. If that being so it is the duty of the Insurance Company to summon the relevant persons of the TVS workshop to sustain their claim. There are several documents to show the vehicle involved in the case is only with reference to vehicle bearing Registration No. TN.69-6667 and not the vehicle with trial plate No. TCR.TN.72.TC.01. From the narration of events, I am of the view that there is no merit in the contention of the learned Counsel for the appellant and the same is rejected.
Point No. 2:
The learned Counsel for the appellant has contended that due to violation of Clause 10 of the condition of the policy they are not entitled to pay any compensation on behalf of the owner of the vehicle namely R1. According to the learned Counsel for the appellant, the owner of the vehicle did not co-operate to sustain his claim on fact. According to the learned Counsel for the appellant, there is a dispute between the owner and the Insurance company due to non furnishing of the materials of the accident.
At this context, it is useful to refer Section 149 Clause 2(a) of Motor Vehicle Act which reads as follows:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward; or
(b) for organised racing and speed testing; or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil, riot or civil commotion.
Section 149 Clause 2 (a) commands that Insurance Company is liable to pay the compensation amount in respect of the road accident and recover the same from the owner, subsequently. It is a well settled position of law that the Insurance Company is liable to pay the compensation as per Section 149 Clause 2(a) of the Act at the first instance and recover the same subsequently from the owner of the vehicle by filing execution petition on the basis of the liability without resorting to civil suit. So, I am of the view that there is no merit in the contention of the learned Counsel for the appellant. This point is also answered against the policy.
Point No. 3:
In view of the point Nos. 1 and 2, I am constraint to hold that the said vehicle is under the first respondent at the time of accident. The lower court has rightly answered this point in favour of the claimant and I do not find any illegality in the finding of the lower court. Finding of the lower court does not require any interference. Hence this point is also against the petitioner. In view of the finding of the point Nos. 1 to 3, I am satisfied that there is no merit in the appeal and hence, this appeal is dismissed. Consequently, connected C.M.P. is also dismissed.