M. Venugopal, J.
1. This Civil Miscellaneous Appeal is filed by the appellant/second respondent, M/s. New India Assurance Company Limited represented by the Divisional Manager, Palayamkottai, as against the award of the Motor Accident Claims Tribunal - I Additional District Court, Tirunelveli, dated 16.03.2004, passed in M.C.O.P. No. 1024 of 2003, awarding a compensation of Rs. 4,12,600/- (Rupees Four Lakhs Twelve Thousand and Six Hundred only) along with interest at 9% p.a from the date of filing of the petition till date of payment and directing the appellant/second respondent Insurance Company and the third respondent/first respondent (owner of the vehicle), to pay the same jointly and severally.
2. Dissatisfied with the award passed by the Tribunal, the appellant/second respondent has projected the present appeal before this Court.
3. The respondents 1 and 2/claimants being the parents of the deceased Avudaiappan @ Kumar have preferred a claim petition in M.C.O.P. No. 1024 of 2003 on the file of the Motor Accident Claims Tribunal - I Additional District Court, Tirunelveli, claiming a total compensation of Rs. 15,46,800/- (Rupees Fifteen Lakhs Forty Six Thousand and Eight Hundred only) and has restricted the same to Rs. 10,00,000/- (Rupees Ten Lakhs only).
4. The facts of the claim in nutshell are as below:
On 31.05.2003, the deceased Avudaiappan @ Kumar was proceeding in his TVS Suzuki motorcycle bearing Registration No. TN-72-C-4221 from Thalaiyuthu to Tirunelveli Junction following the traffic rules, slowly and carefully and when he came near Thachanallur Veni Petrol Bunk on the left side of Tirunelveli - Madurai main road, in north to south direction, on the opposite side from south to north direction, a tipper lorry bearing Registration No. TN-72-T-6005 belonging to the third respondent/first respondent was driven by its driver in a high speed, negligently and without sounding horn and dashed against the motorcycle driven by the said Avudaiappan @ Kumar, as a result of which, he fell down and sustained grievous injuries and that the accident took place because of the third respondent/first respondent's driver's high speed and negligent driving. The said motorcycle was badly damaged in the accident. The injured Avudaiappan @ Kumar was admitted into the Tirunelveli Government Hospital for treatment, but he succumbed to the injuries in the Hospital.
5. The deceased Avudaiappan @ Kumar was aged 27. The respondents 1 and 2/claimants have suffered a permanent loss of income on account of Avudaiappan @ Kumar's death to a sum of Rs. 10,36,000/- (Rupees Ten Lakhs and Thirty Six Thousand only). Even though the respondents 1 and 2/claimants are entitled to claim a compensation of Rs. 15,46,800/- from the third respondent/first respondent and the appellant/second respondent, who are liable to pay legally, they restricted their claim to a sum of Rs. 10,00,000/- (Rupees Ten Lakhs only).
6. A case under Section 304(A) I.P.C was registered against the third respondent/first respondent's driver by Thachanallur Police. The tipper lorry bearing Registration No. TN-72-T-6005 was belonged to the third respondent/first respondent and the said vehicle was insured with the appellant/second respondent Insurance Company.
7. The third respondent/first respondent (owner of the vehicle) has remained ex-parte before the Tribunal.
8. The appellant/second respondent Insurance Company took a plea in the counter that the driver of the lorry did not possess a valid and effective licence on the date of accident namely, 31.05.2003 and that the driver drove the said vehicle without licence for three years and therefore, the owner of the lorry namely, the third respondent/first respondent was liable to pay compensation and that the owner of the vehicle had wilfully permitted the driver to drive the heavy vehicle and that the accident happened due to the rash and negligent act of the deceased and therefore, the appellant/second respondent Insurance Company was not liable to pay the compensation claimed and in any event, the claim of Rs. 10,00,000/- (Rupees Ten Lakhs only) was excessive and that the respondents 1 and 2/claimants had to prove that the deceased was employed as an engineer and LIC Agent and earning a sum of Rs. 8,000/- p.m.
9. Before the Tribunal, on the side of the respondents 1 and 2/claimants, witnesses P.W.1 and P.W.2 were examined and Exs.A.1 to A.12 were marked and on the side of the respondents, R.W.1 was examined and Exs.B.1 and B.2 were marked.
10. To prove the negligence on behalf of the respondents 1 and 2/claimants, P.W.2, Kannan was examined before the Tribunal and that he has deposed that he knew about the occurrence directly and that on 31.05.2003 at about 10.45 a.m, himself and one Janarthanan in order to go to Tirunelveli from Thalaiyuthu in the Madurai - Tirunelveli main road, when they came riding near Veni Petrol Bunk near north side before him at a distance of nearly 50 feet, the deceased Avudaiappan @ Kumar who was involved in the accident, drove the motorcycle bearing Registration No. TN-72-C-4221 from north to south and at that time, from the opposite side to north direction, the said tipper lorry bearing Registration No. TN-72-T-6005 was driven by its driver in a high speed and negligently and dashed against the said Avudaiappan, as a result of which the deceased Avudaiappan sustained serious injuries and was taken in an auto which came in the way and got admitted in the Government Hospital, Tirunelveli where the said Avudaiappan @ Kumar succumbed to injuries and in the charge sheet filed by the police, his name figures in the witnesses' list.
11. In Ex.A.2, charge sheet filed by the Inspector of Police, Thachanallur Police Station before the learned Judicial Magistrate No. 4, Tirunelveli, the driver of the tipper lorry bearing Registration No. TN-72-T-6005 has been chargesheeted under Section 304(A) I.P.C.
12. From Ex.A.3, the criminal Court judgment, in C.C. No. 331 of 2003 dated 07.11.2003, passed by the learned Judicial Magistrate No. 4, Tirunelveli, it is evident that the accused Arunachalam, the driver of the said tipper lorry was found guilty under Section 304(A) I.P.C and he was given punishment of simple imprisonment till rising the Court besides a fine of Rs. 4,000/- was imposed and in default, three months simple imprisonment was also imposed on him.
13. In Ex.A.1, F.I.R, the complainant/ informant's name is mentioned as Janarthanan and the accused's name is mentioned as Arunachalam, the driver of the tipper lorry bearing Registration No. TN-72-T-6005. It is the specific evidence of P.W.2, Kannan that his name finds a place in the witnesses' list in the charge sheet.
14. Even though P.W.2 Kannan is not the informant in Ex.A.1, F.I.R about the occurrence, his name admittedly finds a place in the witnesses' list in the charge sheet filed by the police. According to him, he has seen the occurrence. In fact, P.W.2 Kannan in his evidence, has spoken about the manner and happening of the occurrence lucidly. The evidence of P.W.2, Kannan, an eyewitness to the occurrence assumes significance in the present case and his evidence is worthy of credence and therefore, this Court accepts the same. Bearing in mind of the fact that the evidence of P.W.2 Kannan in regard to the manner and happening of the occurrence and taking note of the fact that the driver of the tipper lorry has been found guilty by the Criminal Court and the fact that the deceased Avudaiappan @ Kumar has died in the road accident, which cannot be disputed, this Court on an over all assessment of the facts and circumstances of the case, comes to the conclusion that the accident has taken place due to the high speed and negligent driving of the vehicle bearing Registration No. TN-72-T-6005 by its driver, Arunachalam and that the said driver is responsible for causing the accident and the point is answered accordingly.
15. The next aspect that arises for rumination is whether the respondents 1 and 2/claimants are entitled for any compensation? If so, for what amount and from whom?
16. The first respondent/first claimant, the father of the deceased Avudaiappan @ Kumar, has been examined as P.W.1, Andiappan, in the case. In his evidence, P.W.1 has deposed that the deceased Avudaiappan @ Kumar was his eldest son and at the time of his death, he was aged 27 years and that in Diploma in Electronics and Communication Engineering, his son obtained first class with honours from M.S.P.T. Polytechnic and in Shree Radhaakrishnan Automobiles at Tuticorin, his son was employed as Generator Sales Representative on a monthly salary of Rs. 4,000/- and that he also acted as an LIC Agent on a monthly salary of Rs. 4,000/- and totally, he gave Rs. 8,000/- to the family and that he received training as Technician in Spic Electronic and Systems Limited, Maraimalainagar, Chennai and in Fastenex Private Limited, Thattanchavady, Pondicherry, his son worked in the Wind Farm Site as a Wind Mill Operator and that his son would have become a famous engineer if he has not died in the accident. Ex.A.6, is the Diploma in Electronics and Communication Engineering, awarded to the deceased Avudaiappan @ Kumar in April 1997 by the State Board of Technical Education and Training, Tamil Nadu and a perusal of it shows that the deceased had passed his Diploma in Electronics and Communication Engineering in First Class with Honours.
17. Ex.A.7 is the license obtained by the deceased Avudaiappan @ Kumar to act as an LIC Agent issued by the Branch Manager of Tirunelveli Branch, LIC of India and in this document, it is mentioned that their licence to act as an LIC Agent is valid upto 02.05.2003. Therefore, on the date of accident on 31.05.2003, the deceased Avudaiappan @ Kumar (son of the claimants) cannot act as an LIC Agent in the absence of a valid license to that effect issued by the competent authority.
18. Ex.A.8, is the certificate issued by Honda Siel Power Products Limited to the deceased Avudaiappan of M/s. Sri Radhakrishna Automobilies, Tirunelveli for having successfully achieved the target for the period of starting 150 MSSS in May 2002.
19. Ex.A.9 is the certificate issued by Shree Radhaakrishnan Automobiles, Tuticorin, dated 03.07.2003, in favour of the deceased Avudaiappan stating that he was working in their concern as Sales Representative and his salary and incentive was Rs. 4,000/- (Rupees Four Thousand only).
20. It is seen from Ex.A.10, certificate dated 12.10.1998 issued by the Fastenex Private Limited, Pondicherry, in favour of the deceased Avudaiappan that he workedf as 'Wind Mill Operator' from 05.09.1997 to 27.09.1998 at the Wind Farm Site, etc. Ex.A.11, is the Certificate of Proficiency, dated 31.08.2000, awarded to the deceased Avudaiappan for having undergone Apprenticeship Training under the Apprentices Act, 1961 at Spic Electronic and Systems Limited, Maraimalainagar from 28.09.1998 to 27.09.1999 in the field of Electronics and Communication Engineering. The said certificate has been issued by the Director of Training and Regional Central Apprenticeship Adviser on behalf of the Board of Apprenticeship Training (Southern Region).
21. Ex.A.9 is the salary certificate dated 03.07.2003 has been marked before the Tribunal through P.W.1 Andiappan (the father of the deceased Avudaiappan @ Kumar). Except Ex.A.9, salary certificate dated 03.07.2003, to prove actually that the deceased Avudaiappan was paid salary of Rs. 4,000/- p.m, no one from the said Shree Radhaakrishnan Automobiles, Tuticorin has been examined before the Tribunal.
22. Therefore, the learned Counsel for the appellant/second respondent Insurance Company contends that Ex.A.9, salary certificate has not been proved in the manner known to law and accordingly, the same cannot be acted upon by this Court.
23. Even though to establish Ex.A.9, salary certificate dated 03.07.2003, no one has been examined from the said Shree Radhakrishnan Automobiles, which issued the said certificate to the deceased Avudaiappan @ Kumar, considering the fact that the deceased Avudaiappan @ Kumar has acquired Diploma and other qualifications to his credit and taking note of the fact that he has worked as 'Sales Representative' during his life time in the said concern, this Court, in the absence of satisfactory proof in regard to the receipt of the salary of Rs. 4,000/-, fixes the salary of the deceased Avudaiappan @ Kumar at Rs. 3,000/- p.m and after deducting 1/3rd amount towards his personal expenses, the monthly dependency of the parents of the deceased Avudaiappan is fixed at Rs. 2,000/- p.m, by this Court, which is quite fair, prudent, reasonable and equitable too, on the facts and circumstances of the case.
24. At this stage, it is to be pointed out that since the licence to act as an LIC Agent has expired on 02.05.2003 as per Ex.A.7, this Court has not taken into consideration the evidence of P.W.1 Andiappan, that his son received a sum of Rs. 4,000/- p.m towards his salary as LIC Agent.
25. In the claim petition, the deceased Avudaiappan's age has been mentioned as 27 at the time of the accident. The first respondent/first claimant/P.W.1's age in the petition has been mentioned as 53 and the second respondent/second claimant's age has been mentioned as 47.
26. The learned Counsel for the appellant/second respondent Insurance Company submits that the Tribunal ought to have fixed the multiplier of 11 instead of 13 and relies on the decision Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr. 2004 (1) TN MAC (SC) 16 , wherein the Honourable Supreme Court has inter alia observed that 'the deceased was unmarried. The contribution to the parents who had their separate earnings being employed and educated have relevance. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. The multiplier adopted by the Tribunal and confirmed by the High Court is certainly on the higher side. Considering the age of the claimants it can never exceed 10 even by the most liberal standards. Worked out on that basis amount comes to Rs. 3.6 lakhs at the monthly expected income fixed by the Tribunal and confirmed by the High Court. etc.'.
27. He also cites the decision Malla Prakasarao v. Malla Janaki and Ors. 2004 (1) TN MAC (SC) 531, wherein the Honourable Supreme Court has inter alia observed as follows:
We have perused the record and find that the multiplier of 9 applied by the High Court in determining the compensation to the claimants was not appropriate. It is not disputed that the deceased was a bank employee and was 46 years of age at the time of accident. It is also not disputed that after deduction of 1/3rd of the amount, total loss of dependency was Rs. 4,000/- per month. It is also not disputed that the age of superannuation of the deceased employee was 60 years and 14 years of service were still left to serve. In view of the facts and circumstances of this case, we are of the view that in the present case the multiplier of 12 ought to have been applied by the High Court. On application of multiplier of 12 the total amount of compensation comes to Rs. 5,76,000/-. The respondent Company has already deposited its share of compensation at the rate awarded by the High Court. Since the liability of the Insurance Company is 40 per cent of the enhanced amount, the respondent Company shall pay the balance amount along with the interest at the rate of 7 per cent on the enhanced amount from the date of this order.
28. Contending contra, the learned Counsel for the respondents 1 and 2/claimants submits that since the deceased Avudaiappan @ Kumar was aged 27 years at the time of his death, multiplier of 18 can be safely adopted and in support of the same, cites the decision K. Jeyagopal and Anr. v. Nachiammai and Anr. 2006 (4) CTC 245, wherein it is observed that 'for a person aged 28 years, who died in a road accident as per Schedule II to Section 163(A) of the Act, multiplier for the age group 25 - 30, is 18 and hence, multiplier of 18 can be adopted and that the application of multiplier of 18 by the Tribunal is in accordance with the proposition of law laid down by the Honourable Supreme Court in Kanhaiyalal Kataria v. Mukul Chaturvedi 2005 (12) SCC 190 and that there is no reason to interfere with the multiplier of 18 adopted by the Tribunal, as the same is justifiable.
29. He also relies on the decision Kanhaiyalal Kataria and Ors. v. Mukul Chaturvedi and Ors. (2005) 12 SCC 190, wherein the Honourable Supreme Court observed that 'since the deceased being 32 years old, multiplier changed to 17 on the basis of indication in Schedule II instead of 17 on the basis of indication in Schedule II instead of 16 taken by the Tribunal, etc.'.
30. Further, on the side of the respondents 1 and 2/claimants, the decision New India Assurance Company Limited v. Kalpana and Ors. (2007) ACC 356 of the Honourable Supreme Court is pressed into service wherein it is observed that 'for a deceased aged 35 years, the appropriate multiplier to be fixed is at 13 and not at 14 as applied by the High Court.'.
31. Taking into account of the fact that the monthly dependency of Rs. 2,000/- p.m, fixed by this Court, per year, the same works out to Rs. 24,000/-. Further, bearing in mind of the fact that the deceased Avudaiappan has died at the age of 27 and he has qualification of Diploma in Electronics and Communication Engineering to his credit etc, and bearing in mind of the fact that his parents namely the respondents 1 and 2/claimants were aged 53 and 47 years respectively, this Court opines that the appropriate multiplier which can be adopted in the present case, is 16 and applying the same, then the loss of dependency works out to Rs. 3,84,000/- (Rs. 24,000/- X 16 = Rs. 3,84,000/-) (Rupees Three Lakhs and Eighty Four Thousand only), to which sum, the respondents 1 and 2/claimants are entitled to receive the same.
32. Apart from the above sum of Rs. 3,84,000/-, the respondents 1 and 2/claimants are entitled to receive a sum of Rs. 2,000/- towards funeral expenses. Thus, the respondents 1 and 2/claimants are entitled to receive the total compensation of Rs. 3,86,000/- (Rupees Three Lakhs and Eighty Six Thousand only) as compensation, for the death of their son Avudaiappan @ Kumar, together with interest at 9% p.a from the date of filing of the petition till date of payment with proportionate costs.
33. The learned Counsel for the appellant/ Insurance Company contends that the driver of the offending vehicle bearing Registration No. TN-72-T-6005 did not possess a valid and effective driving licence on the date of accident on 31.05.2003 and therefore, the third respondent/first respondent, owner of the vehicle, is liable to pay the compensation and as such, the appellant/second respondent Insurance Company cannot be fastened with the liability to pay the compensation to the respondents 1 and 2/claimants as per law. In support of his contention, he cites the decision Malla Prakasarao v. Malla Janaki and Ors. 2004 (1) TN MAC 531, wherein the Honourable Supreme Court has inter alia observed that 'the vehicle was driven by a driver without a driving licence and the driving licence of the driver expired on 20.11.1982 and the same was not renewed within 30 days of expiry of licence, as required under Section 11 of the Act and that there was no driving licence at the time of the accident and therefore, the Insurance Company has no liability to pay the compensation.'.
34. He also cites the decision Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr. 2004 (1) TN MAC (SC) 16, wherein the Honourable Supreme Court inter alia observed that 'what constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act.'.
35. Yet another decision National Insurance Company Limited v. Swaran Singh and Ors. has been relied on the side of the appellant/Insurance Company to bring it to the notice of this Court, wherein the Honourable Supreme Court has summarised the findings as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or bodily injury or damage to property of third party arising from use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.
36. Further, on the side of the appellant/second respondent Insurance Company, the decision National Insurance Company Limited v. Kusum Rai and Ors. 2006 (1) TN MAC 9 , has been relied on to the effect that 'vehicle used as a Taxi/Commercial vehicle driven by holding a licence to drive Light Motor Vehicle and not licence to drive a commercial vehicle and evidently, there was breach of condition of contract of Insurance and the insurer was entitled to raise such defence in appeal and that the insurer was not liable to pay compensation as driver not possessed a valid licence, etc., and resultantly, the insurer, however, was directed to pay and recover the same from the owner.
37. It cannot be gainsaid that in the decision Sardari and Ors. v. Sushil Kumar and Ors. , the Honourable Supreme Court observed that 'the tractor driver admitted that he has no licence to drive the vehicle and the concurrent finding of the High Court and the Tribunal was that the driver of the tractor had no licence and that the High Court held that the claimants are entitled to compensation from the driver and the owner of the vehicle and that the Insurance Company was readily exempted from liability since the owner of the vehicle has a statutory obligation to see that the driver of the vehicle whom he authorised to drive holds a valid licence'.
38. R.W.1, Sundari, working as Junior Assistant in the Regional Transport Office, has deposed that the driver of the tipper lorry, Arunachalam, has been issued with the licence to drive Light Motor Vehicles on 03.04.1994 and for driving Heavy Motor Vehicles, licence has been issued to him on 20.07.1999, which is valid from 08.01.1999 to 02.06.2000 and that the driving licence has not been renewed from 03.06.2000 and that he has been issued with the duplicate licence on 02.06.2000. It is significant to mention that R.W.1 in her cross- examination has stated that as per records, in her office, the said driver can drive tipper lorry and she cannot say whether the said driver has renewed his licence or not and that if a driving licence has expired, the same can be renewed within five years and even after the expiry of five years, the said licence can be renewed with the Regional Transport Officer and further in her re-examination, has stated that the xerox copies of the driving licences are Exs.B.1 and B.2.
39. Further in the cross-examination, R.W.1 has stated that only when proper details are furnished in regard to the renewal, the documents can be brought and without seeing the documents, she cannot speak about the renewal of licence.
40. At this stage, it is pertinent to point out that in Ex.A.2, charge sheet, the driver of the said tipper lorry bearing Registration No. TN-72-T-6005 has been charge sheeted under Section 304(A) I.P.C and he has not been charge sheeted for driving the vehicle without licence or after the expiry of licence. Even in Ex.A.3, the criminal Court judgment, the said driver has been found guilty under Section 304(A) I.P.C upon his admission.
41. A perusal of Ex.B.1, xerox copy of the driving licence, indicates that the driver of the said tipper lorry has a valid driving licence from 08.01.1999 to 02.06.2000 to drive Light Motor Vehicle. Further, in Ex.B.1, it is mentioned as 'D.192/2000 Dup. D.L. issued'. It is seen from Ex.B.2, xerox copy of the driving licence, that the driver Arunachalam has been issued with the Duplicate driving licence to drive Light Motor Vehicles and the period is mentioned as 'from 12.06.2000 to 02.06.2003'. Even though R.W.1, Sundari in her evidence, has stated that as per records, in her office, the driver Arunachalam can drive tipper lorry, but she has also further stated that she cannot say whether the said driver has renewed his licence or not and that even if the driving licence has expired, the same can be renewed for five years and even after the expiry of five years, the licence can be renewed with the Regional Transport Officer and that the renewal of licence details have not been registered in her office records and that she cannot speak about the renewal of licence details without seeing the records.
42. Admittedly, the third respondent/first respondent, owner of the said tipper lorry bearing Registration No. TN-72-T-6005 has not appeared before the Tribunal and has been set ex-parte.
43. It is to be borne in mind that the third respondent/first respondent, owner of the tipper lorry, has a statutory obligation to see that the said driver of the vehicle whom she has authorised to drive, holds a valid licence and as far as the present case is concerned, the driving licence of Arunachalam, driver of the said tipper lorry, has not been renewed from 03.06.2000 as spoken to by R.W.1, Sundari and that it has been established that the driver of the said tipper lorry did not possess a valid and effective licence on the date of accident on 31.05.2003 and therefore, the appellant/second respondent Insurance Company has no liability to pay compensation, in the considered opinion of this Court.
44. Although this Court has opined that the appellant/second respondent Insurance Company is not liable to pay compensation of Rs. 3,86,000/- (Rupees Three Lakhs and Eighty Six Thousand only) awarded by this Court, since the driver has not possessed a valid and effective driving licence at the time of the accident on 31.05.2003, on the facts and circumstances of the case, this Court directs the appellant/second respondent Insurance Company to pay the compensation and recover the same from the third respondent/first respondent (the owner of the tipper lorry bearing Registration No. TN-72-T-6005) by initiating the proceedings before the competent executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal. The lawyer's fee is fixed at Rs. 10,720/- (Rupees Ten Thousand Seven Hundred and Twenty only), by this Court.
45. Earlier, this Court in C.M.P.(MD) No. 1861 of 2004 on 23.11.2004, has permitted the respondents 1 and 2/claimants to withdraw 50% of the amount so deposited along with the entire interest and costs.
46. In fine, the Civil Miscellaneous Appeal is allowed in part to the extent indicated above. Resultantly, the award dated 16.03.2004 passed by the Motor Accident Claims Tribunal - I Additional District Court, Tirunelveli, in M.C.O.P. No. 1024 of 2003, is modified. The parties are directed to work out their remedies in regard to the sum to which they are entitled to receive, before the Tribunal in the manner known to law by projecting necessary payment out application as per Civil Rules of Practice. Consequently, connected Miscellaneous Petition is closed. However, there shall be no order as to costs in this appeal considering the facts and circumstances of the case.