National Insurance Co. Ltd. Vs. Sakthi and ors. - Court Judgment

Excerpt:
- p. sathasivam, j.1. national insurance co. ltd. is the appellant.2. for the death of one kasi in a motor vehicle accident that took place on 18.3.96, wife and children of the deceased have prayed for a compensation of rs. 6,00,000 before the tribunal. the said petition was resisted by the insurance company, respondent no. 2 therein, by filing counter statement. the tribunal after holding that the accident was caused due to negligence of the driver of a van tta 5801 belonging to the respondent no. 1 therein, passed an award for rs. 5,83,700 with interest at the rate of 12 per cent per annum from the date of petition till the date of deposit. against the said award, the insurance company has preferred the present appeal.3. heard the learned counsel appearing for the appellant as well as for the respondent nos. 1 to 5.4. the respondent no. 6 owner of the van though duly served notice from this court, has not chosen to contest the appeal by engaging a counsel.5. learned counsel appearing for the appellant insurance company mainly contended that, inasmuch as the driver of the van was not having valid driving licence to drive any motor vehicle, the tribunal committed an error in fastening the liability for payment of compensation as against the insurance company. she also contended that insurance company has discharged its burden by examining rw 1 to rw 6 and also marking exhs. b-1 to b-8.6. there is no dispute that the deceased kasi died in a road accident that took place on 18.3.1996. pw 2 who witnessed the occurrence explained the manner of accident. a complaint was made by one shanmu-gavel. in the complaint, it is stated that due to negligence of the driver of the van, the deceased sustained fatal injuries and he further deposed that on enquiry he came to know that it was ravichandran, who drove the van. certified copy of the first information report has been marked as exh. a-1. post-mortem certificate has been marked as exh. a-2 and charge-sheet as exh. a-3. in the charge-sheet, exh. a-3, the name of the driver has been mentioned as gunasekaran alias ravichandran. the said gunasekaran was convicted by the judicial magistrate no. i, sivaganga. exh. a-4 is the order of the criminal court. the said gunasekaran was charged under section 304-a of the indian penal code and a fine of rs. 1,500 was imposed. motor vehicle inspector's report is exh. b-1. here again, the driver of the van has been described as ravichandran, s/o palanisamy servai. exh. b-2, licence register shows that a licence has been issued in favour of gunasekaran. insurance policy of the van has been marked as exh. b-3. the perusal of exh. b-3 shows that there was a valid insurance for the said van from 17.3.96 to 16.3.1997. the report of the insurance inspector has been marked as exh. b-4, wherein the name of the driver of the van has been mentioned as ravichandran s/o palanisamy. there is also a reference to show that the said ravichandran was not having any licence. since it is the definite case of the appellant insurance company that the driver of the van was not having any licence, let us consider the evidence let in by them. first witness examined on the side of the insurance company is a motor vehicles inspector. it was rw 1, who prepared a report of the vehicle, wherein the name of the driver is mentioned as ravichandran s/o palanisamy. it is stated that at the time of inspection the driving licence of the driver has not been produced. he fairly stated that he cannot say who drove the vehicle at the relevant time.7. an assistant working in the office of the motor vehicles inspector, sivaganga has been examined as rw 2. he deposed that one gunasekaran s/o palanisamy was granted driving licence to drive light motor vehicles on 27.1.1995. an officer working in the insurance company has been examined as rw 3. he admitted that the van tta 5801 has duly been insured with their company. copy of the insurance policy has been marked as exh. b-3. an inspector was appointed to submit a report regarding the accident. exh. b-4 is a report. he further deposed that, gunasekaran and ravichandran are sons of one palanisamy. ravichandran was not having any licence.8. one durairaj, a private investigator, who investigated the matter on behalf of the appellant insurance company was examined as rw 4. he deposed that, in the first information report the name of the driver has been mentioned as ravichandran and in the charge-sheet it is mentioned as gunasekaran alias ravichandran. in the report of the motor vehicles inspector, the name of ravichandran alone mentioned as driver of the vehicle. he further deposed before the court that, he went to checkadi street, manamadurai and enquired their parents, namely, palanisamy and yesodai. according to him they conveyed that ravichandran and gunasekaran are their sons. he also went and enquired at manamadurai town panchayat office and verified the voters list and ascertained that gunasekaran and ravichandran are different persons. he also enquired the headmaster of a baba matriculation school, manamadurai, the owner of the vehicle in question. according to him, his investigation shows that it was ravichandran who drove the vehicle and he was not having licence to drive any vehicle.9. one abubucker, sanitary inspector, selection grade panchayat, manamadurai has been examined as rw 5. he deposed that, palanisamy is s/o subbiah and ravichandran and gunasekaran are sons of palanisamy and yesodai. all those details find place in the voters list, exh. b-7.10. one sundari, junior assistant working in the office of the regional transport office, sivaganga was examined as rw 6. she deposed that, it would not be possible to verify and ascertain whether he/she was having a valid licence merely on the basis of their address.11. by pointing out the evidence of rws 1 to 6 and exhs. b-1 to b-8, learned counsel appearing for the appellant would contend that, it was ravichandran, who drove the van on 18.3.1996 and he was not having licence to drive any vehicle. though in the first information report, exh. a-1 it is stated that the van was driven by ravichandran, in the charge-sheet, exh. a-3, it is mentioned that it was gunase-karan alias ravichandran. there is no dispute that gunasekaran was having a valid licence, exh. a-2. motor vehicle inspector's report shows that it was ravichandran who drove the vehicle. we have already referred to the fact that the said ravichandran was not having licence to drive any vehicle. though the learned tribunal has considered the oral evidence of rws 1 to 6 and exhs. b-1 to b-8, in the absence of examination of any one from the parents to show that there is no alias name for ravichandran, rejected the stand taken by the insurance company. we have already referred to the evidence let in on the side of the insurance company, namely, rws 1 to 6. no doubt, the insurance company has not examined the police officer who investigated the matter, however, the motor vehicles inspector, rw 1, who prepared the report, exh. b-1 has specifically stated that it was ravichandran s/o palanisamy who drove the van. the evidence of rw 2 shows that gunasekaran alone was issued licence to drive lmv from 27.1.95. rw 3 an officer of the insurance company explained the report of the investigator exh. b-4. the said report discloses that gunasekaran and ravichandran are sons of palanisamy and ravichandran was not having licence. the evidence of rw 4 private investigator of the appellant insurance company shows the said ravichandran and gunasekaran are sons of palanisamy and yesodai. he also verified all those details from selection grade town panchayat, manamadurai. voters list, exh. b-8 contains the names of palanisamy, his wife yesodai, their sons gunasekaran, ravichandran and their family members. rw 5, sanitary inspector of the said town panchayat also corroborates the information given by rw 4. all the above evidences show that ravichandran and gunasekaran are different persons and they are the sons of palanisamy/yesodai and gunasekaran alone was having valid licence to drive the l.m.v. and ravichandran was not having licence to drive any vehicle. in the light of the above factual position we are unable to agree with the conclusion arrived at by the tribunal that the insurance company has not established their defence that the van in question was driven by ravichandran and he was not having licence to drive any vehicle. we have already stated that though the owner of the van, namely, head master of baba matriculation school, respondent no. 6, herein, has not contested the claim petition before the tribunal, even before this court they failed to appear and put forth their case; accordingly we are unable to accept the contrary conclusion arrived at by the tribunal.12. now, let us consider whether the insurance company can escape from its liability to pay the compensation to the claimants as awarded by the claims tribunal. there is an answer in the recent pronouncement of the supreme court in the case of new india assurance co. ltd. v. kamla 2001 acj 843 (sc). in our case we have already referred to the fact that the vehicle was covered by an insurance policy, exh. b-3. in such a circumstance, as per the provisions of the motor vehicles act, particularly under chapter xi, which contains provisions of insurance for motor vehicles against third party risk the insurer has to pay the claim to the third parties. after referring the relevant provisions, their lordships have held:(22) ...when a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions. but the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.it is clear that insofar as third parties are concerned, the insurer has to pay and settle their claim on account of the policy of insurance which have been issued in respect of the vehicle, but the insurer is entitled to recover such sum from the insured, if the insurer was not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy. it is to be noted that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the insurance company but to protect the members of the community who may become sufferers on account of accidents arising from use of motor vehicles. as observed by their lordships of the supreme court in the case of skandia insurance co. ltd. v. kokilaben chandravadan 1987 acj 411 (sc), such a protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims (or dependants of the victims) of the accident. that is the legislature making it prohibitory for motor vehicles being used in public places without covering third party risk by a policy of insurance. in the light of the above discussion, we hold that the insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to be insured, if there is violation of any policy condition. but the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to third parties, if there was any breach to policy condition on account of the vehicle being driven without a valid licence.13. in the present case, we have already held that insurance company succeeded in establishing that there was breach of policy condition; accordingly we direct that the insured, respondent no. 6 herein, to pay that amount to the insurer, appellant herein.14. no argument was advanced with regard to quantum of compensation arrived at by the tribunal accordingly we hereby confirm the same.15. in view of the recent decision of the supreme court in the case of kaushnuma begum v. new india assurance co. ltd. 2001 acj 428 (sc), we reduce the rate of interest to 9 per cent per annum instead of 12 per cent per annum as fixed by the tribunal for the above said amount.16. in the light of what is stated above, we hold that the appellant insurance company is liable to pay the entire award amount at the first instance on account of the certificate of insurance and the insurance company is entitled to recover the said amount from the insured, namely, the owner of the vehicle respondent no. 6 herein. the appeal is ordered accordingly, however there shall be no order as to costs. consequently, connected c.m.p. is closed.