This Civil Miscellaneous Appeal has been filed by the appellant, against the judgment and decree dated 08.08.2003 passed in M.C.O.P.No.16 of 2001 by the Motor Accident Claims Tribunal, I Additional Sub Judge, Cuddalore.
2. It is stated in the claim petition that on 28.05.2000, at about 08.30p.m., while the petitioner was going to his hostel along the College gate, the 1st respondent's vehicle Bajaj M80 bearing Regn. No.TN 72 V 2605 was driven in a rash and negligent manner, dashed him and he sustained fracture in his right leg and lacerated wound and injuries all over the body. He was removed to Sushrusha Hospital at Nagercoil. The accident took place due to the negligent on the part of the rider of the Bajaj M80. The petitioner is studying 3rd year B.E. (Mechanical) Course in S.A.Raja Engineering College, Azhaganeri. Because of the accident he could not concentrate on his studies. He is unable to walk and do normal work. He was also working as a cashier in a Hotel at Azhaganeri as part-time job and was earning a sum of Rs.1,500/- per month. Hence a sum of Rs.7,00,000/- is claimed as compensation.
3. In the counter filed by the 2nd respondent, it is stated that the accident took place solely due to the negligence of the petitioner. The vehicle was not covered by valid permit and fitness certificate. The driver of the vehicle do not have valid license to drive the vehicle. The particulars as of the age, income, permanent disability, medical and other expenses are denied. The manner of accident is also not property described. The compensation claimed is highly excessive and hence the petition may be dismissed.
4. The learned Tribunal Judge, after analysing the evidence on record, fastened the liability upon the rider of the two wheeler and even though the owner of the vehicle did not possess the license to drive the vehicle, still the Insurance Company is liable to pay the compensation. He has quantified the compensation at Rs.2,00,000/-.
5. The learned counsel for the appellant, Mrs. Mythili Suresh would submit that the fact that the driver of the vehicle does not possess any type of license on the date of the accident has been established before the Court by production of Ex.R2 to R5 and hence as per the settled proposition of law, if the driver does not possess any license, then the owner has to be held liable and the Insurance Company has to be absolved from its liability.
6. The Inspection Report of Motor Vehicles involved in Accident- Ex.R3 and the Vehicle Inspection Report Ex.R4 issued by the Motor Vehicles Inspector would show that the driver did not have any license on the date of accident. The appellant Company appointed an investigator to gather particulars with regard to the accident and he submitted a report in Ex.R2, in which he has stated that he met the Driver Murugan and asked for his Driving License and that he admitted that he had no Driving License to drive any kind of vehicle at the time of accident. In this context it is incumbent upon the vehicle owner to come to the witness box and say that he verified the fact whether the driver was having any valid license.
7. The learned counsel for the appellant placed much reliance upon the decision of the Supreme Court reported in 1997 ACJ 1065 [United India Insurance Co. Ltd., v. Gian Chand and others] where Their Lordships have held that if a vehicle is driven by a driver, who does not have any license then the Insurance Company could not be held liable. The operative portion of the judgment is as follows:
"12. Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the insurance company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver....."
8. On behalf of the appellant's side another Supreme Court decision was also cited. In CDJ 2008 S.C. 994 [National Insurance Co. Ltd., Versus Kaushalaya Devi and Others], the opinion of the High Court has been extracted and the decision of the Supreme Court on the point of non possession of driving license on the part of the driver are as follows:
"9. The High Court, however, held that the driving license of the Driver Shyam Lal was not valid stating:
"since I am of the opinion that the endorsement permitting Shyam Lal to drive heavy goods vehicle was ante dated and was not existing on the date of accident it is clear that the owner could not have handed over the vehicle to a person who held a valid driving license. On 16.03.2000 Shyam Lal only held a license to drive a light transport vehicle and the owner could not have checked or verified the license for driving a heavy goods vehicle. In fact in this case the owner has not even stepped into the witness box to say anything in this regard Therefore, I hold that the insurance company was wrongly held liable to pay compensation."
12.In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Court's judgment must be sustained on this ground."
9. Another stress is also made by the learned counsel for the appellant by garnering support from another Supreme Court decision in 2009(1) TN MAC 295 (SC) [National Insurance Co.Ltd. v. Meena Aggarwal] wherein it is held that the owner of the vehicle cannot deny that he has not verified the fact as to whether the driver of the vehicle possess a valid license or not. It is further observed that;
"4. ..... If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of license, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving license."
10. After going through umpteen number of judgments on the subject a learned Judge of this Court has concluded that when the driver does not have a valid license then the Insurance Company cannot be held liable. The decision is reported in 2007 (6) MLJ 384 equal to 2007(2) TNMAC 216 [Oriental Insurance Co. Ltd., and another v. Sivammal and others], wherein it is observed that a person having license for light motor vehicle is not authorised to drive a commercial vehicle without due endorsement made by the competent authorities and the driving license to drive light motor vehicle is not appropriate to drive an Autorickshaw, which is a transport vehicle. Concluding the judgment, the learned Judge has held as under.
"41. In the light of the discussion, the finding of the Tribunal fastening liability on the Insurance Company is liable to be set aside and the Company is hereby exonerated to pay compensation....."
11. This Court in a decision reported in 2007 ACJ 657 [Asirvatham and others v. G.Chandrasekaran and another] has observed that "when the driver was possessing a license for driving heavy passenger vehicle and not for driving heavy goods vehicle and hence there is a breach of the terms of the insurance and as such, the insurance company was not liable to pay the compensation payable by the owner of the vehicle".
12. Following the principles laid down by the Hon'ble Supreme Court on this proposition, this Court is of the considered view that since it is manifest on the basis of the records that the driver of the vehicle did not possess any type of license on the date of accident, the Insurance Company cannot be fastened with the liability to pay compensation to the claimant and the owner has to satisfy the award.
13. As regards the quantum of compensation as fixed by the Tribunal, the learned counsel for the Appellant would submit that without considering the facts and the matters under different heads, the Tribunal has proceeded to direct payment of Rs.2,00,000/- in a consolidated manner, which is not at all sustainable. Her arguments has considerable force.
14. From Ex.P3, Wound Certificate, it transpires that the claimant sustained fracture in right leg bones. Ex.P11, Disability Certificate issued by P.W.2 also supports the said version. It is further stated therein that the claimants who incurred the present disability as post traumatic sequence and is having difficulty in carrying out his routine day-to-day affairs and doing hard works and his disability is permanent in nature and its extent is 60%. At the time of accident, the claimant was studying 3rd year B.E (Mechanical) Course and this disability, namely the fracture occurred in his right leg would be continuing throughout his life and it has been assessed at 60%. Hence this Court is of the considered view that a sum of Rs.1,000/- may be allowed for each percentage as permanent disability. Following is the compensation fixed by this Court under various heads.
23.07.2009 Index : Yes/No Internet : Yes/No ARS To The Motor Accident Claims Tribunal I Additional Sub Judge, Cuddalore.
S.PALANIVELU, J.
ARS C.M.A.(NPD).No.3079 of 2004 23.07.2009