Judgment:
1. This appeal has been filed by the appellant/Insurance company against the award dated 30.09.2005 in M.C.O.P.No.213 of 2002 passed by the Motor Accident Claims Tribunal/the learned Sub-ordinate Judge, Ponneri.
2. Shortly stated factual conspectus are as below: On 11.08.2002 at about 9.00 a.m., when the injured/claimant was walking on the left side of the road, he was knocked down by a motor cycle bearing registration No.TN-05-3924 causing grievous injuries to him. According to the claimant, the motor cyclist was rash and negligent in riding the vehicle and dashed against him. Immediately thereafter, he was admitted in the Government Hospital, Ponneri and later, at Government Hospital, Chennai. A complaint regarding the accident was lodged at the police station and a criminal case was registered against the motor cyclist.
3. The claimant filed claim petition, claiming total compensation of Rs.1,00,000/-. The Motor Accident Claims Tribunal held that the accident occurred due to the rash and negligent riding of the motor cyclist and since the motor cycle was insured with the appellant, the owner and the Insurance Company are liable to pay compensation of Rs.70,800/-.
4. Heard the submissions made by the learned counsel on either side and also perused the materials available on record.
5. Mr.J.Chandran, the learned counsel for the appellant has submitted that the Tribunal has committed an error of law in fixing the liability on the Insurance company, when evidence led by the Insurance company established that the motor cyclist had license to drive only Light Motor Vehicle and not a motor cycle with gear. He would also submit that the compensation awarded by the Tribunal to the first respondent/claimant is on the higher side.
6. With regard to the liability of payment of compensation, the Insurance Company examined one Ramakrishna as R.W.1, the officer from the Insurance Company who had filed the copy of driving licence of the motor cyclist which disclosed that the motor cyclist was given licence to drive only Light Motor Vehicle. There is no endorsement indicating any authorization given to him to ride motor cycle with gear.
7. It was contended by the learned counsel for the respondent that since the rider of the motor cycle had valid driving licence to drive Light Motor Vehicle, he was entitled to drive scooter and therefore, he had valid driving licence to drive the scooter and there is no breach of terms of the Insurance policy and the insurer is liable to indemnify the owner of the motor cycle in question. He would submit that the claimant being a third party, was not aware as to whether the driver of the offending vehicle has requisite and valid driving licence, hence, the Insurance Company is liable to pay compensation to the third party/victim and then, recover the same from the insured as held in National Insurance Co. Ltd., v. Swaran Singh & Others [2004 (1) TNMAC 104 (SC)]. The learned counsel for the respondent placed reliance on the decision of this Court reported in the case of the Divisional Manager, National Insurance Co., v. Usha and another, [2010 (2) TNMAC 27] to support his contention.
8. Per contra, Mr.J.Chandran, the learned counsel for the appellant relied on the recent judgment of the Hon'ble Supreme Court in Oriental Insurance Company v. zaharulnisha [2008 ACJ 1928 (SC)] which arose on similar facts wherein, the driver possessed driving licence of driving Heavy Motor Vehicle but had no licence to drive scooter, the Hon'ble Supreme Court held that since the scooterist was driving totally different class of vehicle, it is in violation of Sec.10(2) of the Motor Vehicle Act and therefore, the insurer cannot be held liable to pay compensation. But however, in view of the decision of the Hon'ble Supreme Court in National Insurance Company Ltd., v. Baljit Kaur and others [2004 (2) SCC 1] the insurer was directed to satisfy the award and recover the same along with interest from the owner of the vehicle.
9. In yet another decision of the Hon'ble Supreme Court reported in New India Assurance Co. Ltd., v. Roshanben Rahemansha Fakir, [2008 ACJ 2161 (SC)] the Hon'ble Supreme Court wherein, the driver of the offending vehicle had licence to drive three wheeler who had no driving licence to drive transport vehicle, held that he was not possessing valid driving licence and the Insurance company was directed to satisfy the award and recover the amount from the owner.
10. I find considerable force in the submission of the learned counsel for the Insurance company. It is evident from the records that the offending vehicle is a motor cycle and the driving licence granted to the driver was only for driving a Light Motor Vehicle. The defence raised by the appellant falls under the purview of Sec.149(2) of Motor Vehicle Act. Since the rider of the motor cycle had no appropriate licence to ride motor cycle with gear, there was a breach of condition of the contract of insurance policy and hence, the appellant/Insurance Company is not liable to indemnify the insured.
11. A contention was raised by the owner, the second respondent herein that he cannot be made liable to make the payment of compensation to the claimant as he was not the owner of the vehicle in question at the time of accident as he had already sold the vehicle to one Bakthavatchalam even before the accident.
12. Per contra, Ms.Malar, the learned counsel for the first respondent/claimant contended that under Sec.2(30) of Motor Vehicle Act, the 'owner' means a person in whose name a motor vehicle stands registered and under Sec.50(1)(a) the transferor is required to report fact of transfer to registering authority in prescribed form within 14 days of transfer and under Sec.50(1)(b) duty is cast upon the transferee to report transfer to jurisdiction registering authority within 30 days and the owner having failed to comply with the said provision cannot contend that no liability could be fastened on him. The learned counsel placed reliance on the judgment of this Court reported in M.Duraisamy v. K.Balakrishanan & another [2010 (2) TN MAC 3] in support of her intention.
13. The owner/second respondent herein in the present case though filed counter raising the above said defence but failed to place on record any evidence in the shape of any agreement etc., to prove that he had sold the vehicle in question to Bakthavatchalam and thereby, he being the registered owner of the offending vehicle was liable to discharge the award. There is no other evidence produced on record by the second defendant/owner except the averment made in the counter. Admittedly, the second respondent/owner is the registered owner of the offending vehicle. He being the owner of the vehicle in question was vicariously liable for the damages caused in the accident by the driver of the vehicle.
14. The claimant had contusion on the chest but X-ray reports of the chest and skull disclosed that there was no fracture. He was hospitalised for 6 days. In view of injury sustained by the claimant, P.W.2/Dr. Thiagarajan has deposed that he is unable to lift his left arm above 800 hence, it would be difficult to work as a coolie. He has assessed the disability as 25%. The Tribunal has assessed the disability as 20% and awarded a sum of Rs.46,800/- for loss of earning capacity which cannot be sustained. Considering the nature of injuries and the claimant being a mason Rs.30,000/- is awarded for disability caused to him (Rs.1,500/- per percentage).
15. A sum of Rs.10,000/- awarded by the Tribunal towards pain and suffering is enhanced to Rs.15,000/-. A sum of Rs.10,000/- awarded by the Tribunal towards extra-nourishment and Rs.3000/- towards transportation is reduced to Rs.2000/- and Rs.1000/- respectively. Another sum of Rs.10,000/- is awarded for loss of amenities. A sum of Rs.1000/- awarded for damages to clothing shall be maintained. In all, the claimant is entitled to Rs.59,000/- as compensation.
16. Accordingly, the award of the Tribunal i.e., Rs.70,800/- is reduced to Rs.59,000/- under the following heads:-
Loss of earning capacity Rs. 30,000.00
Pain & Sufferings Rs. 15,000.00
Transportation Rs. 1,000.00
Loss of amenities Rs. 10,000.00
Extra nourishment Rs. 2,000.00
Damages to clothing Rs. 1,000.00
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Rs. 59,000.00
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17. In view of the discussion made above, it is held that the licence to drive a Light Motor Vehicle cannot be held to be a valid licence for driving a motor cycle. In the present case, the driver of the vehicle held a driving licence for driving Light Motor Vehicle and had no driving licence to drive a motor cycle. Therefore, the Insurance Company could not have been held liable to pay the amount of compensation. The Tribunal gravely erred in not taking into consideration, the law laid down by the Hon'ble Supreme Court in Oriental Insurance Company Limited v. Zaharulnisha and others [2009 (1) TNMAC 419 (SC)]. However, in view of the law laid down by the Apex Court in National Insurance Company Limited v. Saran Singh, [2004 ACJ 1 (SC)], the Insurance company would be liable to satisfy the award but shall be entitled to recover the amount from the insured/owner of the vehicle. In view of the above discussion, the Civil Miscellaneous Appeal is allowed and the amount of compensation is modified to Rs.59,000/- instead of Rs.70,800/-. The Insurance Company is directed to deposit the balance amount within a period of three weeks with proportionate interest and on such deposit, the claimant is permitted to withdraw the entire amount. The award of the Tribunal is also modified to an extent that the Insurance Company shall be entitled to recover the amount from the insured/owner of the vehicle. There shall be no orders as to costs.