The Divisional Manager, the New India Assurance Co. Ltd. Vs. V. Chandran and M. Murugan - Court Judgment

SooperKanoon Citationsooperkanoon.com/834347
SubjectMotor Vehicles
CourtChennai High Court
Decided OnAug-21-2009
Case NumberCMA(MD) No. 680 of 2008
JudgeA. Selvam, J.
Reported in(2009)8MLJ1632
ActsMotor Vehicles Act, 1988 - Sections 140, 147, 149, 149(4), 149(5) and 166; Motor Vehicles Rules, 1961 - Rule 3
AppellantThe Divisional Manager, the New India Assurance Co. Ltd.
RespondentV. Chandran and M. Murugan
Appellant AdvocateK. Elangovan, Adv.
Respondent AdvocateA. Saravanan, Adv. for R-1 and ;V. Sasikumar, Adv. for R-2
DispositionAppeal allowed
Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. a. selvam, j.1. challenge in this civil miscellaneous appeal is to the award dated 26.10.2004 passed in mcop. no. 354 of 1997 by the motor accident claims tribunal/additional district and sessions court (fast track court) dindigul.2. the first respondent herein as petitioner has filed mcop. no. 354 of 1997 under sections 140 and 166 of motor vehicles act and rule 3 of 1961 on the file of the motor accident claims tribunal praying to pass an award of rs. 1,00,000/-, wherein the present appellant has been shown as second respondent.3. it is stated in the petition that on 08.09.1996 at about 11.45 am, the petitioner has travelled on a motor cycle as a pillion rider on nilakottai - anaipatti road from north to south. at that time the driver of the first respondent has driven the van bearing registration no. tn-57-6636 in rash and negligent manner and dashed against the motor cycle on which the petitioner has travelled and due to accident, the petitioner has sustained multiple injuries including fractures. the van which belongs to the first respondent has been insured with the second respondent. after accident, the petitioner has been admitted in a private hospital and taken treatment upto 22.09.1996. since the entire accident has happened due to rash and negligent driving of the driver of the first respondent and since the vehicle which involved in the accident has been insured with the second respondent, both respondents are liable to pay compensation to the petitioner to the extent of rs. 1,00,000/-.4. in the counter filed on the side of the first respondent it is stated that the driver of the first respondent has not caused the accident and the vehicle of the first respondent has been insured with the second respondent at the time of accident and there is no merit in the petition and the same deserves dismissal.5. in the counter filed on the side of the second respondent it is stated that the accident has not happened due to rash and negligent driving of the driver of the first respondent and further the driver of the first respondent has not possessed of licence at the time of accident and therefore, the second respondent is not legally liable to pay compensation to the petitioner and therefore, the present petition deserves to be dismissed.6. on the basis of the rival contentions raised on either side, the motor accident claims tribunal has awarded a compensation of rs. 60,000/- with 9% interest and further directed the second respondent to recover the interest accrued from the date of filing of the petition till 08.12.2003 from the first respondent. against the award passed by the motor accident claims tribunal, the present civil miscellaneous appeal has been filed at the instance of the second respondent as appellant.7. the sum and substance of the contention urged on the side of the first respondent/petitioner is that on 08.09.1996 the petitioner has travelled as a pillion rider on a motor cycle which has been driven by one chandran on nilakottai - anaipatti road from north to south and at that time the driver of the first respondent has driven the van bearing registration no. tn-57-6636 in rash and negligent manner and dashed against the motor cycle on which the petitioner has travelled and due to accident, the petitioner has sustained multiple injuries including fractures and further the van which caused accident has been insured with the second respondent and therefore the respondents are jointly or severally liable to pay compensation to the petitioner.8. on the side of the first respondent (owner of the vehicle) it has been simply stated that at the time of accident the van in question has been insured with the second respondent and further the accident has not happened due to rash and negligent driving of the driver of the first respondent.9. on the side of the second respondent it has been specifically stated that on the date of alleged accident, the driver of the first respondent has not possessed of any licence and therefore, the second respondent is not liable to pay compensation to the petitioner.10. as stated earlier, the motor accident claims tribunal has rejected all the contentions raised on the side of the second respondent and ultimately directed the second respondent to pay a compensation of rs. 60,000/- to the petitioner.11. the learned counsel appearing for the appellant/second respondent has ingeniously raised the following points so as to set aside the award passed by the motor accident claims tribunal.(a) the driver of the first respondent has not possessed of any licence at the time of accident(b) since the driver of the first respondent has not possessed of any licence at the time of accident, the first respondent has violated policy condition and under the said circumstances, the second respondent cannot be directed to pay compensation to the petitioner.12. the learned counsel appearing for the respondents 1 and 2 have raised the following points:(a) the driver of the first respondent has possessed of valid licence at the time of accident.(b) the second respondent has not established that the driver of the first respondent has not possessed of licence at the time of accident.(c) if at all the court comes to a conclusion that the driver of the first respondent has not possessed of any licence, as per the dictum given by the honourable supreme court with regard to pay and recover, the second respondent can be directed to pay entire compensation to the petitioner (first respondent herein) with liberty to recover the same from the second respondent herein (owner of the vehicle).13. on the basis of the rival points raised on either side, the court has to perpend firstly as to whether the driver of the first respondent has possessed of licence on the date of accident.14. it is an admitted fact that the accident in question has happened on 08.09.1996 at about 11.45 am. the specific contention of the second respondent/owner of the vehicle is that on the date of accident his driver has possessed of valid licence.15. in 2009 (1) tn mac 487 (sc) (bhuwan singh v. oriental insurance co. ltd. and anr.), it has been held that 'burden of proof ordinarily would be on insurance company to establish that there has been a breach of conditions of contract of insurance'.16. from the dictum given by the honourable apex court, the court can easily discern that the entire burden lies upon the appellant/second respondent to prove that on the date of accident the driver of the first respondent/owner of the vehicle has not possessed of any licence.17. on the side of the second respondent, exs.r1 to 4 have been filed. ex.r3 is a copy of legal notice sent to the first respondent/owner of the vehicle and his driver viz., pandi murugan. even after receipt of the same, the first respondent/owner of the vehicle and his driver have not chosen to give any reply to the effect that on the date of accident the driver of the first respondent has possessed of valid licence.18. apart from ex.r3, on the side of the second respondent r.w.2 has been examined. he would say in his evidence that he has been serving in rto office, dindigul and no document is available in the office with regard to licence number of the driver viz., pandi murugan. if really the driver of the first respondent/owner of the vehicle has possessed of any licence at the time of accident, definitely the first respondent and his driver might have given suitable reply to ex.r3 and if really the said pandi murugan (driver of the first respondent) has obtained licence, definitely some documents would be available in the rto office, dindigul. therefore, it is quite clear that the appellant/second respondent has discharged its burden to the effect that the driver of the first respondent/owner of the vehicle has not possessed of any licence on the date of accident. further neither the first respondent nor his driver has chosen to give any evidence to that effect. therefore, viewing from any angle, as per the dictum rendered by the honourable apex court, the appellant/second respondent has discharged its burden for proving that the first respondent/owner of the vehicle has violated contract of insurance.19. it is an acknowledged principle of law that if any owner of the vehicle has violated contract of insurance, the concerned insurance company cannot be directed to give compensation in respect of any accident.20. the learned counsel appearing for the respondents herein (petitioner as well as owner of the vehicle) have uniformly contended that if there is any violation of contract of insurance, the concerned insurance company can be directed to pay compensation to the concerned petitioner with liberty to recover the same from the concerned owner of the vehicle. in support of their contention, they have drawn the attention of the court to the decision reported in : (2004) 3 supreme court cases 297 (national insurance co. ltd. v. swaran singh and ors.), wherein the larger bench of the honourable apex court has held as follows:although as noticed herein before, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstance of the case, we do not intend to set aside the said awards. such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. but this order may not be considered as a precedent.21. from the close reading of the decision rendered by the larger bench of the honourable apex court, the court can easily ken that in view of the facts and circumstances of the case mentioned in the decision, the larger bench of the honourable apex court has directed the concerned insurance company to pay compensation and recover the same from the concerned owners of the vehicles which involved in the accidents and further the larger bench of the honourable apex court has categorically pointed out that the aforesaid finding cannot be considered as a precedent.22. article 142 of the constitution of india reads as follows:142. enforcement of decrees and orders of supreme court and orders as to discovery, etc.- (1) the supreme court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of india in such manner as may be prescribed by or under any law made by parliament and, until provision in that behalf is so made, in such manner as the president may by order prescribe.(2) subject to the provisions of any law made in this behalf by parliament, the supreme court shall, as respects the whole of the territory of india, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.23. from the close reading of article 142(1) of the constitution of india, it is easily discernible that if there is no law with regard to a particular aspect, the honourable supreme court is having unfettered right to frame necessary corollary, until necessary law to be passed by the parliament.24. article 141 of the constitution of india reads as under:141. law declared by supreme court to be binding on all courts.- the law declared by the supreme court shall be binding on all courts within the territory of india. however, the honourable supreme court has laid down the following categories of decisions of the supreme court have no binding force:(a) obiter dicta, i.e., statements which are not part of the ratio decidendi.(b) a decision per incurium, i.e., a decision given in ignorance of the terms of a statute or rule having the force of a statute.(c) a decision passed sub-silentio, i.e., without any argument or debate on the relevant question.(d) an order made with the consent of the parties, and with the reservation that it should not be treated as a precedent.25. as per category (d) 'if an order has been passed with the consent of parties, and with reservation that it should not be treated as a precedent'. the same is not binding upon other courts.26. in the decision reported in : (2004) 3 supreme court cases 297 (national insurance co. ltd. v. swaran singh and ors.), as pointed out earlier, the larger bench of the honourable supreme court has categorically held that the direction given to the concerned insurance company cannot be considered as a precedent. therefore, it is quite clear that the finding given by the larger bench of the honourable supreme court to the extent that the concerned insurance company should pay compensation first to the concerned petitioners and recover the same from the owners of the vehicles involved in the accidents is not binding upon other courts. to put it in nutshell, the said finding given by the larger bench of the honourable apex court, is only with regard to the case mentioned therein and the same cannot be applied in any other case.27. the learned counsel appearing for the respondents (petitioner as well as owner of the vehicle) have also relied upon the full bench decision of this court reported in 2009 (1) tn mac 1 (fb) (branch manager, united indian insurance co. ltd., branch office v. nagammal and ors.), wherein the full bench of this court has analysed all the relevant decisions including the decision reported in : (2004) 3 supreme court cases 297 (national insurance co. ltd v. swaran singh and ors.) and ultimately held that(a) the insurance policy is required to cover the liability envisaged under section 147 of the motor vehicles act, 1988, but wider risk can always be undertaken.(b) section 149 of the said act envisages the defences which are open to the insurance company. where the insurance company is not successful in its defence, obviously it is required to satisfy the decree and the award. where it is successful in its defence, it may yet be required to pay the amount to the claimant and thereafter recover the same from the owner under such circumstance envisaged and enumerated in section 149(4) and section 149(5).(c) under section 147 of the said act, the insurance company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.(d) since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of 'pay and recover', as statutorily recognised in section 149(4) and section 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the court is not expected to issue such a direction to the insurance company to pay to the claimant and thereafter recover from the owner.28. the ultimate corollary of the full bench of this court is that it would be in the discretion of the appellate court depending upon the facts and circumstances of the case, whether the doctrine of 'pay and recover' should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be.29. from the close reading of the decisions referred to above, it is made clear that if there is any violation of the conditions of contract of insurance, the concerned insurance company cannot be fastened with liability and further it is made clear that if violation of policy condition arises, the question of pay and recover does not arise as per law and it is purely discretion of the court.30. at this juncture it would be more useful to look into the decision reported in : 2008 acj 1307 (sardari and ors. v. sushil kumar and ors.), wherein the honourable apex court has held that although in terms of a contract of insurance, which is in the realm of private law domain having regard to the object for which sections 147 and 149 of the act had been enacted, the social justice doctrine as envisaged in the preamble of the constitution of india has been given due importance. the act, however, itself provides for the cases where the insurance company can avoid its liability. avoidance of such liability would largely depend upon violation of the conditions of contract of insurance. where the breach of conditions of contract is ex facie apparent from the records, the court will not fasten the liability on the insurance company. in certain situations, however, the court while fastening the liability on the owner of the vehicle may direct the insurance company to pay to the claimants the awarded amount with liberty to it to recover the same from the owner. the owner of the vehicle has a statutory obligation to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. the owner would be liable for payment of compensation, in case, where the driver was not having a licence at all.31. in the instant case it has already been discussed in detail that the appellant/second respondent has positively proved that on the date of accident, the driver of the first respondent has not possessed of licence at all and further both the first respondent (owner of the vehicle) and his driver has adopted nonchalant attitude in proving the fact that at the time of accident the driver of the first respondent has had valid licence. in the decision reported in : 2008 acj 1307 (sardari and ors. v. sushil kumar and ors.), the concerned insurance company has proved that the driver who involved in the accident has not possessed of licence at all. under the said circumstances, it has been held that the owner of the vehicle is alone liable for compensation. further a statutory obligation lies upon the owner of the vehicle to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. in the instant case also as animadverted to earlier both the first respondent (owner of the vehicle) and his driver have not at all cared to prove about the factum of licence at the time of accident. under the said circumstances, the compensation payable to the first respondent/petitioner should be paid only by the second respondent herein/owner of the vehicle.32. it is a humdrum that if a person commits wrong or mistake, he should bear its sequence. if a person who has no connection whatsoever with the wrong or mistake, he cannot be forced to bear its outcome. in the instant case, as noted down in many places, the appellant/second respondent has positively established that the driver of the first respondent (owner of the vehicle) has not possessed of licence at all at the time of accident. therefore, it is pellucid that the first respondent (owner of the vehicle) has done violation of contract of insurance. since he has done violation of contract of insurance and since the principle of pay and recover is nothing but purely discretion of the court and since the larger bench of the honourable apex court has categorically pointed out that the said principle is applicable only to the particular case mentioned in the decision reported in : (2004) 3 supreme court cases 297 (national insurance co. ltd. v. swaran singh and ors.) and the same cannot be treated as a precedent, the court can very well come to a conclusion that the principle of pay and recover cannot be applied in the present case.33. the learned counsel appearing for the respondents (petitioner and owner of the vehicle) have also made their residual attempt to the effect that this court can follow the decision reported in : (2004) 3 supreme court cases 297 (national insurance co. ltd. v. swaran singh and ors.) in preference to the decision reported in : 2008 acj 1307 (sardari and ors. v. sushil kumar and ors.) by way of applying latin maxim 'stare decisis'. it means 'to stand by things decided'. the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation. in other words, 'the rule of adherence to judicial precedent finds its expression in the doctrine of stare decisis. the doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases'. the maxim 'stare decisis et non quieta movere' means 'to stand by things decided, and not to disturb settled points'.34. it has already been stated in many places that the finding given by the larger bench of the honourable apex court in swaran singh's case with regard to pay and recover is applicable only to that case and the lager bench of the honourable apex court has categorically stated to the effect that 'this order may not be considered as a precedent'. therefore with regard to principle of pay and recover, the larger bench of the honourable apex court has not settled anything finally so as to bind other courts. as per the categories culled out by the honourable apex court under article 141 of the constitution of india 'if an order has been passed with the consent of parties, and with reservation that it should not be treated as a precedent, the same is not binding upon other courts'. since the larger bench of the honourable apex court has not finally settled the principle of pay and recover to the effect that the said principle applies invariably in all cases, the said finding cannot be treated as things finally decided or settled.35. it is a settled principle of law that for applying 'stare decisis, stare decisis et non quieta movere', the point or principles of law in question must be settled by a competent court. therefore, it is quite clear that the principle of stare decisis cannot be applied on the basis of the finding given in the decision reported in : (2004) 3 supreme court cases 297 (national insurance co. ltd. v. swaran singh and ors.) in preference to the decision reported in : 2008 acj 1307 (sardari and ors. v. sushil kumar and ors.).36. the learned counsel appearing for the respondents (petitioner and owner of the vehicle) has also drawn the attention of the court to the decision reported in : 2008 acj 2788 (marimuthammal and anr. v. r.p.p. construction (p) ltd. and ors.), wherein this court has held that when high court is faced with conflicting views of the apex court, the high court has to follow opinion expressed by larger bench in preference to that expressed by smaller bench.37. even at the risk of jarring repetition, the court would like to point out that the finding given in : (2004) 3 supreme court cases 297 (national insurance co. ltd v. swaran singh and ors.) by the larger bench of the honourable apex court with regard to principle of pay and recover is only applicable to that case, wherein it has not been specifically stated that the finding is applicable to other cases also and further no divergent views of the honourable apex court are in existence with regard to the principle of pay and recover. under the said circumstances, the view expressed by the learned single judge of this court cannot be applied in the present case.38. it has already been pointed out in so many places that the first respondent (owner of the vehicle) and his driver have adopted nonchalant attitude with regard to factum of possession of licence on the date of accident and further the appellant/second respondent has positively established that on the date of accident, the driver of the first respondent (owner of the vehicle) has not possessed of licence at all. as per the decision reported in : 2008 acj 1307 (sardari and ors. v. sushil kumar and ors.) if there is apparent violation of contract of insurance on the part of the owner of the vehicle, the compensation should be paid only by him and not by the concerned insurance company.39. in the instant case, as pointed out earlier, the first respondent/owner of the vehicle/second respondent herein has done flagrant violation of conditions of contract of insurance and since he has done flagrant violation of contract of insurance, as per law, he is liable to pay compensation to the first respondent/petitioner. the appellant second respondent is nothing but insurer of the first respondent/owner of the vehicle. since the first respondent (owner of the vehicle) has done clear violation of contract of insurance, the appellant/second respondent as insurer cannot be directed to pay compensation to the first respondent/petitioner with liberty to recover the same in future. the appellant/second respondent is also a party to the present proceeding and its interest must also be taken into consideration. in nutshell, the court must look into both sides of a coin. unless there is a legal tie or the appellant/second respondent is legally bound to pay compensation to the first respondent/petitioner, the court cannot direct the appellant/second respondent to pay the same to the first respondent/petitioner with liberty to recover the same from the second respondent herein(owner of the vehicle). therefore, viewing from any angle the principle of pay and recover cannot be applied in the present case.40. the learned counsel appearing for the appellant/second respondent has not touched the quantum of compensation. the motor accident claims tribunal has fixed the quantum of compensation to the tune of rs. 60,000/-. considering the nature of the injuries sustained by the first respondent/petitioner, the quantum of compensation fixed by the motor accident claims tribunal is not excessive and as decided earlier, the same should be paid only by the second respondent herein/owner of the vehicle and the liability fixed upon the appellant/second respondent by the motor accident claims tribunal can be set aside and in view of the foregoing narration of both factual and legal aspects, it is needless to say that the points raised by the learned counsel appearing for the appellant/second respondent can be accepted and the points raised on the side of the respondents (petitioner and owner of the vehicle) are not having substance at all.41. in fine, this civil miscellaneous appeal is allowed in part without cost. the award passed in mcop. no. 354 of 1997 by the motor accident claims tribunal/additional district and sessions court (fast track court) dindigul is modified as follows:the quantum of compensation fixed by the motor accident claims tribunal is confirmed and the same should be paid only by the second respondent herein (owner of the vehicle). so far as the appellant/second respondent is concerned, mcop. no. 354 of 1997 is dismissed without cost. if the appellant/second respondent has deposited any amount and if the same has been withdrawn by the first respondent/petitioner, the first respondent /petitioner should deposit the same within one month and the appellant/second respondent is at liberty to withdraw the entire amount deposited in mcop. no. 354 of 1997. connected miscellaneous petition is closed.
Judgment:

A. Selvam, J.

1. Challenge in this Civil Miscellaneous Appeal is to the award dated 26.10.2004 passed in MCOP. No. 354 of 1997 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court) Dindigul.

2. The first respondent herein as petitioner has filed MCOP. No. 354 of 1997 under Sections 140 and 166 of Motor Vehicles Act and Rule 3 of 1961 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs. 1,00,000/-, wherein the present appellant has been shown as second respondent.

3. It is stated in the petition that on 08.09.1996 at about 11.45 am, the petitioner has travelled on a motor cycle as a pillion rider on Nilakottai - Anaipatti road from North to South. At that time the driver of the first respondent has driven the van bearing Registration No. TN-57-6636 in rash and negligent manner and dashed against the motor cycle on which the petitioner has travelled and due to accident, the petitioner has sustained multiple injuries including fractures. The van which belongs to the first respondent has been insured with the second respondent. After accident, the petitioner has been admitted in a private hospital and taken treatment upto 22.09.1996. Since the entire accident has happened due to rash and negligent driving of the driver of the first respondent and since the vehicle which involved in the accident has been insured with the second respondent, both respondents are liable to pay compensation to the petitioner to the extent of Rs. 1,00,000/-.

4. In the counter filed on the side of the first respondent it is stated that the driver of the first respondent has not caused the accident and the vehicle of the first respondent has been insured with the second respondent at the time of accident and there is no merit in the petition and the same deserves dismissal.

5. In the counter filed on the side of the second respondent it is stated that the accident has not happened due to rash and negligent driving of the driver of the first respondent and further the driver of the first respondent has not possessed of licence at the time of accident and therefore, the second respondent is not legally liable to pay compensation to the petitioner and therefore, the present petition deserves to be dismissed.

6. On the basis of the rival contentions raised on either side, the Motor Accident Claims Tribunal has awarded a compensation of Rs. 60,000/- with 9% interest and further directed the second respondent to recover the interest accrued from the date of filing of the petition till 08.12.2003 from the first respondent. Against the award passed by the Motor Accident Claims Tribunal, the present Civil Miscellaneous Appeal has been filed at the instance of the second respondent as appellant.

7. The sum and substance of the contention urged on the side of the first respondent/petitioner is that on 08.09.1996 the petitioner has travelled as a pillion rider on a motor cycle which has been driven by one Chandran on Nilakottai - Anaipatti road from North to South and at that time the driver of the first respondent has driven the van bearing Registration No. TN-57-6636 in rash and negligent manner and dashed against the motor cycle on which the petitioner has travelled and due to accident, the petitioner has sustained multiple injuries including fractures and further the van which caused accident has been insured with the second respondent and therefore the respondents are jointly or severally liable to pay compensation to the petitioner.

8. On the side of the first respondent (owner of the vehicle) it has been simply stated that at the time of accident the van in question has been insured with the second respondent and further the accident has not happened due to rash and negligent driving of the driver of the first respondent.

9. On the side of the second respondent it has been specifically stated that on the date of alleged accident, the driver of the first respondent has not possessed of any licence and therefore, the second respondent is not liable to pay compensation to the petitioner.

10. As stated earlier, the Motor Accident Claims Tribunal has rejected all the contentions raised on the side of the second respondent and ultimately directed the second respondent to pay a compensation of Rs. 60,000/- to the petitioner.

11. The learned Counsel appearing for the appellant/second respondent has ingeniously raised the following points so as to set aside the award passed by the Motor Accident Claims Tribunal.

(a) the driver of the first respondent has not possessed of any licence at the time of accident

(b) since the driver of the first respondent has not possessed of any licence at the time of accident, the first respondent has violated policy condition and under the said circumstances, the second respondent cannot be directed to pay compensation to the petitioner.

12. The learned Counsel appearing for the respondents 1 and 2 have raised the following points:

(a) the driver of the first respondent has possessed of valid licence at the time of accident.

(b) the second respondent has not established that the driver of the first respondent has not possessed of licence at the time of accident.

(c) if at all the Court comes to a conclusion that the driver of the first respondent has not possessed of any licence, as per the dictum given by the Honourable Supreme Court with regard to pay and recover, the second respondent can be directed to pay entire compensation to the petitioner (first respondent herein) with liberty to recover the same from the second respondent herein (owner of the vehicle).

13. On the basis of the rival points raised on either side, the Court has to perpend firstly as to whether the driver of the first respondent has possessed of licence on the date of accident.

14. It is an admitted fact that the accident in question has happened on 08.09.1996 at about 11.45 am. The specific contention of the second respondent/owner of the vehicle is that on the date of accident his driver has possessed of valid licence.

15. In 2009 (1) TN MAC 487 (SC) (Bhuwan Singh v. Oriental Insurance Co. Ltd. and Anr.), it has been held that 'burden of proof ordinarily would be on Insurance Company to establish that there has been a breach of conditions of contract of Insurance'.

16. From the dictum given by the Honourable Apex Court, the Court can easily discern that the entire burden lies upon the appellant/second respondent to prove that on the date of accident the driver of the first respondent/owner of the vehicle has not possessed of any licence.

17. On the side of the second respondent, Exs.R1 to 4 have been filed. Ex.R3 is a copy of legal notice sent to the first respondent/owner of the vehicle and his driver viz., Pandi Murugan. Even after receipt of the same, the first respondent/owner of the vehicle and his driver have not chosen to give any reply to the effect that on the date of accident the driver of the first respondent has possessed of valid licence.

18. Apart from Ex.R3, on the side of the second respondent R.W.2 has been examined. He would say in his evidence that he has been serving in RTO office, Dindigul and no document is available in the office with regard to licence number of the driver viz., Pandi Murugan. If really the driver of the first respondent/owner of the vehicle has possessed of any licence at the time of accident, definitely the first respondent and his driver might have given suitable reply to Ex.R3 and if really the said Pandi Murugan (driver of the first respondent) has obtained licence, definitely some documents would be available in the RTO office, Dindigul. Therefore, it is quite clear that the appellant/second respondent has discharged its burden to the effect that the driver of the first respondent/owner of the vehicle has not possessed of any licence on the date of accident. Further neither the first respondent nor his driver has chosen to give any evidence to that effect. Therefore, viewing from any angle, as per the dictum rendered by the Honourable Apex Court, the appellant/second respondent has discharged its burden for proving that the first respondent/owner of the vehicle has violated contract of Insurance.

19. It is an acknowledged principle of law that if any owner of the vehicle has violated contract of Insurance, the concerned Insurance Company cannot be directed to give compensation in respect of any accident.

20. The learned Counsel appearing for the respondents herein (petitioner as well as owner of the vehicle) have uniformly contended that if there is any violation of contract of insurance, the concerned Insurance Company can be directed to pay compensation to the concerned petitioner with liberty to recover the same from the concerned owner of the vehicle. In support of their contention, they have drawn the attention of the Court to the decision reported in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd. v. Swaran Singh and Ors.), wherein the Larger Bench of the Honourable Apex Court has held as follows:

Although as noticed herein before, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstance of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent.

21. From the close reading of the decision rendered by the Larger Bench of the Honourable Apex Court, the Court can easily ken that in view of the facts and circumstances of the case mentioned in the decision, the Larger Bench of the Honourable Apex Court has directed the concerned Insurance Company to pay compensation and recover the same from the concerned owners of the vehicles which involved in the accidents and further the Larger Bench of the Honourable Apex Court has categorically pointed out that the aforesaid finding cannot be considered as a precedent.

22. Article 142 of the Constitution of India reads as follows:

142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.- (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

23. From the close reading of Article 142(1) of the Constitution of India, it is easily discernible that if there is no law with regard to a particular aspect, the Honourable Supreme Court is having unfettered right to frame necessary corollary, until necessary law to be passed by the Parliament.

24. Article 141 of the Constitution of India reads as under:

141. Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme Court shall be binding on all courts within the territory of India. However, the Honourable Supreme Court has laid down the following categories of decisions of the Supreme Court have no binding force:

(a) Obiter dicta, i.e., statements which are not part of the ratio decidendi.

(b) A decision per incurium, i.e., a decision given in ignorance of the terms of a statute or rule having the force of a statute.

(c) A decision passed sub-silentio, i.e., without any argument or debate on the relevant question.

(d) An order made with the consent of the parties, and with the reservation that it should not be treated as a precedent.

25. As per category (d) 'if an order has been passed with the consent of parties, and with reservation that it should not be treated as a precedent'. The same is not binding upon other courts.

26. In the decision reported in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd. v. Swaran Singh and Ors.), as pointed out earlier, the Larger Bench of the Honourable Supreme Court has categorically held that the direction given to the concerned Insurance Company cannot be considered as a precedent. Therefore, it is quite clear that the finding given by the Larger Bench of the Honourable Supreme Court to the extent that the concerned Insurance Company should pay compensation first to the concerned petitioners and recover the same from the owners of the vehicles involved in the accidents is not binding upon other courts. To put it in nutshell, the said finding given by the Larger Bench of the Honourable Apex Court, is only with regard to the case mentioned therein and the same cannot be applied in any other case.

27. The learned Counsel appearing for the respondents (petitioner as well as owner of the vehicle) have also relied upon the Full Bench decision of this Court reported in 2009 (1) TN MAC 1 (FB) (Branch Manager, United Indian Insurance Co. Ltd., Branch Office v. Nagammal and Ors.), wherein the Full Bench of this Court has analysed all the relevant decisions including the decision reported in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd v. Swaran Singh and Ors.) and ultimately held that

(a) The Insurance Policy is required to cover the liability envisaged under Section 147 of the Motor Vehicles Act, 1988, but wider risk can always be undertaken.

(b) Section 149 of the said Act envisages the defences which are open to the Insurance Company. Where the Insurance Company is not successful in its defence, obviously it is required to satisfy the decree and the award. Where it is successful in its defence, it may yet be required to pay the amount to the claimant and thereafter recover the same from the owner under such circumstance envisaged and enumerated in Section 149(4) and Section 149(5).

(c) Under Section 147 of the said Act, the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.

(d) Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of 'pay and recover', as statutorily recognised in Section 149(4) and Section 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner.

28. The ultimate corollary of the Full Bench of this Court is that it would be in the discretion of the appellate Court depending upon the facts and circumstances of the case, whether the doctrine of 'pay and recover' should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be.

29. From the close reading of the decisions referred to above, it is made clear that if there is any violation of the conditions of contract of insurance, the concerned Insurance Company cannot be fastened with liability and further it is made clear that if violation of policy condition arises, the question of pay and recover does not arise as per law and it is purely discretion of the Court.

30. At this juncture it would be more useful to look into the decision reported in : 2008 ACJ 1307 (Sardari and Ors. v. Sushil Kumar and Ors.), wherein the Honourable Apex Court has held that although in terms of a contract of Insurance, which is in the realm of private law domain having regard to the object for which Sections 147 and 149 of the Act had been enacted, the social justice doctrine as envisaged in the preamble of the Constitution of India has been given due importance. The Act, however, itself provides for the cases where the Insurance Company can avoid its liability. Avoidance of such liability would largely depend upon violation of the conditions of contract of insurance. Where the breach of conditions of contract is ex facie apparent from the records, the Court will not fasten the liability on the Insurance Company. In certain situations, however, the Court while fastening the liability on the owner of the vehicle may direct the Insurance Company to pay to the claimants the awarded amount with liberty to it to recover the same from the owner. The owner of the vehicle has a statutory obligation to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. The owner would be liable for payment of compensation, in case, where the driver was not having a licence at all.

31. In the instant case it has already been discussed in detail that the appellant/second respondent has positively proved that on the date of accident, the driver of the first respondent has not possessed of licence at all and further both the first respondent (owner of the vehicle) and his driver has adopted nonchalant attitude in proving the fact that at the time of accident the driver of the first respondent has had valid licence. In the decision reported in : 2008 ACJ 1307 (Sardari and Ors. v. Sushil Kumar and Ors.), the concerned Insurance Company has proved that the driver who involved in the accident has not possessed of licence at all. Under the said circumstances, it has been held that the owner of the vehicle is alone liable for compensation. Further a statutory obligation lies upon the owner of the vehicle to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. In the instant case also as animadverted to earlier both the first respondent (owner of the vehicle) and his driver have not at all cared to prove about the factum of licence at the time of accident. Under the said circumstances, the compensation payable to the first respondent/petitioner should be paid only by the second respondent herein/owner of the vehicle.

32. It is a humdrum that if a person commits wrong or mistake, he should bear its sequence. If a person who has no connection whatsoever with the wrong or mistake, he cannot be forced to bear its outcome. In the instant case, as noted down in many places, the appellant/second respondent has positively established that the driver of the first respondent (owner of the vehicle) has not possessed of licence at all at the time of accident. Therefore, it is pellucid that the first respondent (owner of the vehicle) has done violation of contract of insurance. Since he has done violation of contract of insurance and since the principle of pay and recover is nothing but purely discretion of the Court and since the Larger Bench of the Honourable Apex Court has categorically pointed out that the said principle is applicable only to the particular case mentioned in the decision reported in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd. v. Swaran Singh and Ors.) and the same cannot be treated as a precedent, the Court can very well come to a conclusion that the principle of pay and recover cannot be applied in the present case.

33. The learned Counsel appearing for the respondents (petitioner and owner of the vehicle) have also made their residual attempt to the effect that this Court can follow the decision reported in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd. v. Swaran Singh and Ors.) in preference to the decision reported in : 2008 ACJ 1307 (Sardari and Ors. v. Sushil Kumar and Ors.) by way of applying Latin Maxim 'stare decisis'. It means 'to stand by things decided'. The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation. In other words, 'The rule of adherence to judicial precedent finds its expression in the doctrine of stare decisis. The doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases'. The maxim 'stare decisis et non quieta movere' means 'to stand by things decided, and not to disturb settled points'.

34. It has already been stated in many places that the finding given by the Larger Bench of the Honourable Apex Court in Swaran Singh's Case with regard to pay and recover is applicable only to that case and the Lager Bench of the Honourable Apex Court has categorically stated to the effect that 'this order may not be considered as a precedent'. Therefore with regard to principle of pay and recover, the Larger Bench of the Honourable Apex Court has not settled anything finally so as to bind other Courts. As per the categories culled out by the Honourable Apex Court under Article 141 of the Constitution of India 'if an order has been passed with the consent of parties, and with reservation that it should not be treated as a precedent, the same is not binding upon other Courts'. Since the Larger Bench of the Honourable Apex Court has not finally settled the principle of pay and recover to the effect that the said principle applies invariably in all cases, the said finding cannot be treated as things finally decided or settled.

35. It is a settled principle of law that for applying 'stare decisis, stare decisis et non quieta movere', the point or principles of law in question must be settled by a competent Court. Therefore, it is quite clear that the principle of stare decisis cannot be applied on the basis of the finding given in the decision reported in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd. v. Swaran Singh and Ors.) in preference to the decision reported in : 2008 ACJ 1307 (Sardari and Ors. v. Sushil Kumar and Ors.).

36. The learned Counsel appearing for the respondents (petitioner and owner of the vehicle) has also drawn the attention of the Court to the decision reported in : 2008 ACJ 2788 (Marimuthammal and Anr. v. R.P.P. Construction (P) Ltd. and Ors.), wherein this Court has held that when High Court is faced with conflicting views of the Apex Court, the High Court has to follow opinion expressed by larger Bench in preference to that expressed by smaller Bench.

37. Even at the risk of jarring repetition, the Court would like to point out that the finding given in : (2004) 3 Supreme Court Cases 297 (National Insurance Co. Ltd v. Swaran Singh and Ors.) by the Larger Bench of the Honourable Apex Court with regard to principle of pay and recover is only applicable to that case, wherein it has not been specifically stated that the finding is applicable to other cases also and further no divergent views of the Honourable Apex Court are in existence with regard to the principle of pay and recover. Under the said circumstances, the view expressed by the learned Single Judge of this Court cannot be applied in the present case.

38. It has already been pointed out in so many places that the first respondent (owner of the vehicle) and his driver have adopted nonchalant attitude with regard to factum of possession of licence on the date of accident and further the appellant/second respondent has positively established that on the date of accident, the driver of the first respondent (owner of the vehicle) has not possessed of licence at all. As per the decision reported in : 2008 ACJ 1307 (Sardari and Ors. v. Sushil Kumar and Ors.) if there is apparent violation of contract of insurance on the part of the owner of the vehicle, the compensation should be paid only by him and not by the concerned Insurance Company.

39. In the instant case, as pointed out earlier, the first respondent/owner of the vehicle/second respondent herein has done flagrant violation of conditions of contract of insurance and since he has done flagrant violation of contract of insurance, as per law, he is liable to pay compensation to the first respondent/petitioner. The appellant second respondent is nothing but insurer of the first respondent/owner of the vehicle. Since the first respondent (owner of the vehicle) has done clear violation of contract of insurance, the appellant/second respondent as insurer cannot be directed to pay compensation to the first respondent/petitioner with liberty to recover the same in future. The appellant/second respondent is also a party to the present proceeding and its interest must also be taken into consideration. In nutshell, the Court must look into both sides of a coin. Unless there is a legal tie or the appellant/second respondent is legally bound to pay compensation to the first respondent/petitioner, the Court cannot direct the appellant/second respondent to pay the same to the first respondent/petitioner with liberty to recover the same from the second respondent herein(owner of the vehicle). Therefore, viewing from any angle the principle of pay and recover cannot be applied in the present case.

40. The learned Counsel appearing for the appellant/second respondent has not touched the quantum of compensation. The Motor Accident Claims Tribunal has fixed the quantum of compensation to the tune of Rs. 60,000/-. Considering the nature of the injuries sustained by the first respondent/petitioner, the quantum of compensation fixed by the Motor Accident Claims Tribunal is not excessive and as decided earlier, the same should be paid only by the second respondent herein/owner of the vehicle and the liability fixed upon the appellant/second respondent by the Motor Accident Claims Tribunal can be set aside and in view of the foregoing narration of both factual and legal aspects, it is needless to say that the points raised by the learned Counsel appearing for the appellant/second respondent can be accepted and the points raised on the side of the respondents (petitioner and owner of the vehicle) are not having substance at all.

41. In fine, this Civil Miscellaneous Appeal is allowed in part without cost. The award passed in MCOP. No. 354 of 1997 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court) Dindigul is modified as follows:

The quantum of compensation fixed by the Motor Accident Claims Tribunal is confirmed and the same should be paid only by the second respondent herein (owner of the vehicle). So far as the appellant/second respondent is concerned, MCOP. No. 354 of 1997 is dismissed without cost. If the appellant/second respondent has deposited any amount and if the same has been withdrawn by the first respondent/petitioner, the first respondent /petitioner should deposit the same within one month and the appellant/second respondent is at liberty to withdraw the entire amount deposited in MCOP. No. 354 of 1997. Connected Miscellaneous Petition is closed.