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BRANCH MANAGER versus KRISHNAMMAL

High Court of Madras

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Branch Manager v. Krishnammal - C.M.A.(MD).No.262 of 2004 [2007] RD-TN 1948 (15 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 15/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.M.A.(MD).No.262 of 2004

and

C.M.P.(MD).No.1990 of 2004

and

M.P.(MD).Nos.1 and 2 of 2006

Branch Manager,

National Insurance Co. Ltd.,

24, Kamaraj Bazaar,

Bodinayakanur. .. Appellant Vs.

1.Krishnammal

2.Kaliswari

3.Sadayammal

4.Ramuthuai

5.Sundaravalli

6.Muthur .. Respondents

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the Judgment and Decree dated 13.01.2004 made in M.C.O.P.No.267 of 2001 on the file of the Motor Accident Claims Tribunal, Principal District Court, Virudhunagar at Srivilliputhur.

For Appellant : Mr.N.Vijayaraghavan

For RR-1 to 5 : Mr.A.John Vincent

:JUDGMENT



This Civil Miscellaneous Appeal is directed against the award dated 13.01.2004 passed by the Motor Accident Claims Tribunal, Principal District Court, Virudhunagar at Srivilliputhur in M.C.O.P.No.267 of 2001, directing payment of a sum of Rs.2,38,000/- together with an interest at the rate of 9 from the date of claim till realisation and cost for the death of one Krishnan, the husband of the first claimant and the father of the other claimants, in an accident alleged to have taken place on 24.05.2001.

2. The brief facts leading to the filing of the appeal can be briefly stated thus:

One Krishnan of Thambipatti Village met with an accident on 24.05.2001 at about 02.30 p.m. near Pillaiyar Kovil in between Thambipatti and Mavooth, Srivilliputhur Taluk, Virudhunagar District, while he was proceeding towards Mavooth from Thambipatti accompanied by his brother Ramar. While they were proceeding from north to south, the tractor belonging to the sixth respondent herein which came from east and turned towards north hit the deceased Krishnan, causing grievous injuries all over the body. Immediately after the accident, the said Krishnan was taken to the Government Hospital, Watrap, where he succumbed to the injuries shortly after admission. The respondents 1 to 5 herein/claimants, who are the wife and children of the deceased, claiming to be his legal representatives and dependants and contending that the accident took place due to the rash and negligent driving of the above said tractor by bearing Registration No.TNN-3169 by its driver and that the tractor stood insured with the appellant herein/second respondent in M.C.O.P. during the relevant time, had filed the above said M.C.O.P. claiming a sum of Rs.3,00,000/- as compensation from the sixth respondent herein and the appellant herein, as the owner and alleged insurer of the vehicle along with future interest and costs. In order to substantiate their claim, the claimants examined two witnesses as P.Ws.1 and 2 and relied on four documents marked as Exs.P-1 to P-4.

3. The sixth respondent herein/first respondent before the Tribunal, the owner of the offending vehicle did not contest the claim and chose to remain exparte before the Tribunal.

4. The alleged insurer, namely the appellant herein/second respondent in M.C.O.P., alone contested the claim by filing a counter-statement denying the petition averments regarding the manner in which the accident took place, the age, occupation and income of the deceased and entitlement of the claimants to make the claim for compensation against the appellant herein. Specific averments had also been made to the effect that the person, who drove the vehicle at the time of accident, did not possess a valid licence to drive the same and hence there was violation of an important condition of the insurance policy; that the said violation of the condition of policy will absolve the insurance company of its liability to indemnify the insured against the claim made by the claimants and that hence the claim made against the insurer, namely the appellant/second respondent, should be dismissed with cost. Two witnesses were examined as R.Ws.1 and 2 and four documents were marked as Exs.R-1 to R-4 on the side of the respondents.

5. The Tribunal, at the conclusion of enquiry, heard the arguments advanced on either side, framed the necessary points for determination and scrutinised the evidence available on record in the light of the submissions made on both sides. Upon such a scrutiny, the Tribunal came to the conclusion that the accident was the direct result of rash and negligent driving of the tractor belonging to the first respondent and bearing Registration No.TNN-3169 by its driver. The Tribunal also held the respondents 1 to 5 herein/claimants in M.C.O.P. to be the legal representatives and dependants of the deceased and awarded a sum of Rs.2,38,000/- as compensation which amount was directed to be paid jointly and severally by the appellant and the sixth respondent herein together with an interest at the rate of 9 per annum from the date of claim till realisation.

6. With regard to the defence taken by the insurer, namely the appellant herein, the Tribunal gave a finding that the insurer failed to prove the absence of driving licence and hence fastened the liability on the appellant also to pay the above said amount of compensation, in accordance with the contract of insurance. In line with the finding of the Tribunal that the insurer had failed to substantiate its contention that the driver of the vehicle did not possess a valid driving licence, it has also omitted to incorporate any direction for the recovery of the amount from the insured/owner of the offending vehicle, after making payment to the legal representatives of the victim.

7. Challenging the above said finding that the insurer/appellant has not substantiated the contention that the driver of the offending vehicle did not possess a valid driving licence and refusal to incorporate a direction enabling the insurer to recover the amount paid as compensation to the legal representatives of the victim, the insurer, the appellant herein/second respondent before the Tribunal, has brought forth this appeal under Section 173 of the Motor Vehicles Act.

8. Advancing arguments on behalf of the appellant, Mr.N.Vijayaraghavan, learned counsel has made the following submissions: "The offending vehicle, namely, the tractor bearing Registration No.TNN- 3169 no doubt stood insured with the appellant Insurance Company as on the date of accident. In the absence of any violation of a vital condition of policy of insurance, the appellant Insurance Company shall no doubt be liable to indemnify the insured (owner of the offending vehicle) and the said liability can be enforced at the instance of the claimants. In case of violation of a vital condition of the policy, the appellant shall get a right to rescind the contract of insurance with the result that the insurer shall be exonerated from indemnifying the insured as against the claim made by the victims or in case of fatal accident by the legal representatives of the victims. The condition that the vehicle should not be allowed to be driven by a person not holding a valid driving licence is one of such vital conditions. In the instant case, there is violation of the above said condition in so far as the person who drove the vehicle and caused the accident did not possess valid driving licence to drive the vehicle."

9. Contending further the learned counsel for the appellant would submit that though the burden of proving violation of a policy, the condition to enable the insurer to rescind the contract of insurance lies on the insurer, the burden has been duly discharged by adducing clear evidence, both oral and documentary; that the Tribunal on an erroneous application of law and evidence wrongly held that the appellant insurance company failed to prove its case of absence of driving licence and that the said finding deserves to be upset by this Court in this appeal. Adding further, the learned counsel would contend that the appellant/insurer should be exonerated from its liability to make payment to the claimants on behalf of the insured; that the claim as against the appellant/second respondent in M.C.O.P. should have been dismissed in its entirety and that in the alternative at least a right to recover the amount from the insured after making payment to the claimants should have been recognised and incorporated in the award.

10. The Court heard the submissions made by the learned counsel for the contesting respondents 1 to 5/claimants, in this regard and paid its anxious considerations to the same.

11. As pointed out supra, the finding of the Tribunal regarding the question of negligence and quantum of compensation is not challenged. The only ground of attack made in this appeal is in respect of the liability of the insurer to shoulder the liability of the insured to pay compensation to the claimants. The insurer/appellant disowned its liability based on its contention that there was violation of a vital condition of the contract of insurance, namely absence of driving licence for the person who drove the vehicle at the time of accident. There cannot be any second opinion that the insurer who pleads violation of a policy condition is bound to prove it by adducing evidence. In the instant case, in order to substantiate its contention that the person who drove the vehicle at the time of accident did not possess a valid driving licence, the appellant Insurance company not only examined two witnesses but also produced documentary evidence in the form of Exs.R-1 to R-4. In addition to the same, the appellant insurance company also relied on Ex.P-1 - copy of the First Information Report produced by the claimants. Ex.R-2 is the copy of the letter addressed to the owner of the vehicle calling upon him to furnish the particulars of driving licence of the driver. Ex.R-3 is the postal acknowledgement in proof of service of Ex.R-2 notice on the insured (owner of the vehicle) R.W.1 employed as an assistant in the Regional Office of the insurance company has deposed, in clear terms, that the insured did not take care to furnish the driving licence particulars or to issue a reply at least. This Court is able to find force in the contention of the learned counsel for the appellant and agrees with him that the failure on the part of the insured either to furnish the particulars of the driving licence or to give a reply to Ex.R.2 notice will give rise to an adverse inference against the insured.

12. P.W.1, the first claimant and P.W.2, the brother of the deceased were not assertive that the vehicle involved in the accident was driven by a person holding a valid driving licence. On the other hand, there seems to be an initial identity crisis regarding the driver of the vehicle. In the unamended petition before amendment, one Subbu Raj had been shown to be the driver of the vehicle involved in the accident. Subsequently, there was an explanation at the time of enquiry before the Tribunal that Subbu Raj was the driver of the tractor in which the deceased was taken to the hospital from the scene of occurrence before he died and that one Deva Anbu was the driver of the offending vehicle. Accordingly after obtaining an order for amendment, the claim petition was amended. At the same time, it is pertinent to note that in the certified copy of the First Information Report produced by the claimants and marked on their side as Ex.P.1 and in the certified copy of the Motor Vehicle Inspector's report marked as Ex.P.3, the name and other particulars of the driver of the offending vehicle are not found. The said column in both the documents have been left blank. But in Ex.P.4 - certified copy of the Judgment in the criminal case and in Ex.R-4 - certified copy of the charge sheet, the above said Deva Anbu has been shown as the accused. Admittedly, Deva Anbu was the person who actually drove the offending vehicle and caused the accident in question. It is clear from Ex.R.4 that he was charge sheeted for an offence punishable under Section 3 r/w 181 of the Motor Vehicles Act, besides an offence under Section 304(A) IPC. Ex.R.4 makes it clear that he was convicted for an offence under Section 3 r/w 181 of the Motor Vehicles Act also based on his admission and plea of guilty.

13. It is a well settled principle that the Judgment of the criminal Court, except for the proof of the fact that there had been a criminal trial which ended in conviction or acquittal, is not either admissible or relevant in a civil case or a motor accident claims case. To the above said general principle, there is one exception that the said Judgment will become relevant and admissible in case of conviction on the plea of guilty, not as a verdict of a criminal Court but as an admission made in the former case. No doubt admissions are not conclusive proofs but they are the best evidence of the facts admitted. In such cases, the party against whom the admission is sought to be used as a piece of evidence can disprove the facts admitted by adducing rebuttal evidence. In the instant case, no rebuttal evidence, worthy of taking into consideration, has been brought forth either by the claimants or by the owner of the vehicle (sixth respondent herein/first respondent in M.C.O.P.). As such, the said admission gains more evidentiary value.

14. Apart from this, piece of circumstantial evidence discussed above, there is another piece of evidence in the form of testimony of R.W.2, a Junior Assistant, attached to the Regional Transport Office, Srivilliputhur. It is not in dispute that the above said Deva Anbu (driver) resides within the jurisdiction of the Regional Transport Office, Srivilliputhur. R.W.2 has given clear evidence to the effect that no driving licence was issued in the Regional Transport Office, Srivilliputhur to the above said Deva Anbu. An attempt was made by the counsel for the claimants by putting a suggestion that he could not have verified with the other Regional Transport Offices to find out whether any such licence had been issued in such offices and eliciting affirmative answer from R.W.2 to show that there was failure on the part of the insurer to collect necessary evidence to prove its contention of absence of driving licence. But one must keep in mind the impossibility of verifying with all Regional Transport Offices in the country without necessary particulars to narrow down the search to the manageable sphere. In the instant case, the appellant seems to have exhausted all possible means at its disposal to collect and produce evidence regarding the existence or otherwise of a valid driving licence. It will be quite unreasonable to expect anything more from the insurance company to prove its case of absence of driving licence. In motor accident claim cases, like civil cases strict proof beyond reasonable doubt is not required. Even otherwise the overwhelming evidence adduced by the appellant in the light of the absence of contra evidence and the failure on the part of the insured to produce the necessary particulars of driving licence despite the receipt of notice requiring him to furnish the same will be enough to hold that the appellant insurance company has proved its case of absence of licence without any room for reasonable doubt. The evidence adduced on the side of the appellant insurance company shall be enough, at least, to discharge the burden of proving and shifting the same on the person, who pleads the opposite to prove it. The Tribunal has definitely committed an error in holding that the insurer/appellant has not discharged its burden of proving violation of a policy condition and thus the said finding has got to be undone and reversed.

15. While accepting the contention of the learned counsel for the appellant that there was violation of a vital condition of the policy and that the same will be a ground available to the insurer to rescind the contract of insurance, this Court is unable to accept the further contention of the learned counsel for the appellant that, in such a case, the insurer will be completely exonerated and that the claimants' prayer against the insurer is bound to fail. The said argument advanced on the side of the appellant is liable to be discountenanced. Time and again, in a hierarchy of cases, the Honourable Supreme Court and the High Courts of the country have uniformly held that the scheme of compulsory insurance of motor vehicles is a welfare measure aimed at protecting the interest of the third party victims and legal representatives of the third party victims and that the provisions enabling the insurer to rescind the contract on the basis of violation of a condition of the policy has been held to govern only the inter se rights and obligations of the insurer and the insured, without affecting the benefit conferred upon the third party victims.

16. For all the reasons stated above, this Court comes to the conclusion that the appellant/insurer has clearly proved its case that the driver of the offending vehicle did not possess a valid driving licence at the time of accident and hence the finding of the Tribunal in this regard shall have to be reversed. In view of the above said finding that the vehicle was driven by a person not holding a valid licence at the time of accident, it is also held that the insurer has committed violation of a condition of the policy by allowing a person not holding a valid licence to drive the same and that thereby the insurer has got a right to rescind the contract of insurance. There might be violation of the condition of policy based on which the rights of the insured and insurer inter se be worked out. But the Court should not forget the purpose, for which compulsory motor vehicle insurance scheme has been introduced as a welfare measure. To ensure that the injured or the dependants of the victim and are not deprived of their right to get compensation from the drivers and owners of the offending vehicles who may not be in a sound financial position, the scheme of compulsory insurance of motor vehicles have been introduced. Absolving the insurance company from its liability altogether will go against the above said welfare scheme aimed at protecting the interest of the poor victims. That is the reason why repeatedly it has been held by the Courts that, unless the insurance coverage itself is disputed and the defence does not go to the root of the insurance contract itself, violation of a condition will simply give a right to the insurer to rescind the contract. Even then, the obligation of the insurer to compensate the victim or the legal representatives/dependants of the victim does not come to an end. In such cases, the liability of the insurer towards third party shall be absolute with the rider that the insurer who succeeds in establishing violation of an important policy condition shall be entitled to recover from the insured the amount paid by the insurance company to the claimants as compensation, that too, after making payment to the protected person, namely, the claimants. It has also been held in a catena of cases that in all such cases the insurance company shall not be driven to file a separate suit for recovery of the amount and that a direction should be incorporated in the award itself enabling the insurer to recover the amount from the insured by levying execution in the Tribunal itself. This position has been well settled in New India Assurance Co. Ltd. vs. Kamla (2001 ACJ 843) and Kumar (Minor), etc. v. National Insurance Cl. Ltd. [2002(4) LW 691].

17. Applying the said principle, this Court hereby holds that the appellant insurance company's liability towards the claimants shall be absolute and that the amount awarded in this case as compensation should be jointly and severally paid by the appellant and the sixth respondent herein. In case, the appellant insurance company makes payment of the award amount, it shall have a right to recover the same from the sixth respondent herein, namely, the owner of the offending vehicle.

18. In the result, this appeal is allowed in part and the award of the Tribunal is modified by incorporating a direction that the appellant/insurer after making payment of compensation to the claimants shall have a right to seek reimbursement from the sixth respondent herein and recover the same from him by levying execution before the Tribunal in M.C.O.P. itself without having a necessity to resort to separate legal proceedings. Subject to the above said modification, in all other respects, the award of the Tribunal shall stand confirmed. There shall be no order as to payment of costs. Consequently, the connected miscellaneous petitions are closed.

SML

To

The Motor Accident Claims Tribunal,

Principal District Court,

Virudhunagar at

Srivilliputhur.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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