Full Judgment
1. K.Muthu, the claimant is the appellant herein.
2. Challenging the award exonerating the National Insurance Company, the second respondents herein, from the liability and holding that then owner of the vehicle, the first respondent herein, alone is liable to pay the compensation of Rs 12,500 for the injuries sustained by the claimant, as against the total claim of compensation of Rs 50,000, this appeal has been filed before this Court.
3. On 10.6.88 at about 7.30 P.M., the claimant Muthu was riding in his tri-cycle from south to north in Waltax Road on the Western side of the road. When he was going opposite to Padmanbha Theatre, the auto-rickshaw bearing registration No.TME.1231 came from behind with a very high speed in a rash and negligent manner and hit and knocked down the claimant, as a result of which, he fell down and sustained injuries. He has a fracture in his right hand fore-arm. He took treatment in Government Hospital, Madras.
4. Hence, he filed a claim petition seeking for the compensation of Rs.50,000. The first respondent is the owner-cum-driver of the auto-rickshaw. The second respondent is the National Insurance Company with which the auto-rickshaw was insured.
5. During the course of enquiry, the claimant PW1, the doctor PW2 and the Police Officer PW3 were examined and Ex.P-1 to P-4 were marked. On the side of the respondents, no witness was examined, however, on behalf of the second respondent-Insurance Company. ExR-1, the copy of the policy, was marked.
6. The tribunal, after analysing the material as placed before it, concluded that the driver of the auto-rickshaw was negligent and as such, the claimant would be entitled to the compensation of Rs.12,500 only, though the claim was Rs 50,000. It is further held that since the auto-driver at the time of accident was in a drunken state, which is in contravention of the conditions of the policy, the Insurance Company would not be liable to pay any amount of compensation and that therefore, the owner of the auto-rickshaw, the first respondent, alone would be liable to pay the said sum.
7. This finding is challenged in this appeal.
8. The learned counsel for the appellant would urge the following contentions:-
(i) The Insurance Company cannot be exonerated merely on the ground that the driver-cum-owner of the auto-rickshaw was in a drunken state, at the time of the accident, and it is the duty of the Insurance Company to pay the amount of compensation to the injured and then, it could claim the said amount from the insured for the violation of the conditions mentioned in the policy ; and
(ii) The quantum of compensation awarded is on the lower side.
9. These submissions are resisted by the learned counsel appearing for the second respondent.
10. The only question that arises for consideration is as to whether the Insurance Company has to be exonerated merely on the ground that the driver-cum-owner of the auto-rickshaw was under the influence of intoxicating liquor.
11. On going through the records, it is clear that there are materials, such as, ExP-2 FIR and the deposition of PW1 claimant and PW2 Sub Inspector of Police, that at the time of accident, the auto-driver was in a drunken mood.
12. Clause 2(b) of the Policy EX.R-1 also would clearly show that the Insurance Company was not liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured was under the influence of intoxicating liquor or drugs only in respect of damage to the property.
13. However, in respect of the claim of the third party, who sustained injuries due to the hit by the auto-rickshaw, which was insured with the Insurance Company, the second respondent herein, the liability to pay the third party cannot be absolved. On the other hand, for the violations of the conditions of the policy, the insurance Company, after payment of the amount to the injured, as to claim the said amount from the insured on the strength of the violation of the conditions of the policy. The principles with regard to the defence to be taken by the Insurance Company are laid down in United India Insurance Co Ltd. v. Nachimuthu, : (1997)IIMLJ336 , and British India General Insurance Co. Ltd. v. Captain Itbar Singh, : [1960]1SCR168 .
14. Under these circumstances, I do not find any merit in the finding given by the Tribunal that the Insurance Company cannot be fastened with the liability in respect of the compensation payable to the claimant, who is the injured.
15. Hence, the award of the tribunal is modified to the effect that the second respondent -Insurance Company is liable to pay the compensation along with interest at the rate of 12 per cent per annum from the date of petition till the date of realisation.
16. In regard to quantum, in my view, the fixation of the same by the tribunal is quite adequate and appropriate. Therefore, as far as the quantum is concerned, the finding of the tribunal is confirmed.
17. In the result, the appeal is allowed in part. No costs.