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2013 Supreme(Mad) 4249
IN THE HIGH COURT OF MADRAS
G.M.AKBAR ALI, J.
DIVISIONAL MANAGER, NEW INDIA ASSURANCE - Appellant
Versus
SAMBATH - Respondent
C.M.A. No. 792 of 2012 and M.P. No. 1 of 2013
Decided on : 21-08-2013
Subject
Motor Vehicle Accident - Insurance Liability
Act Referred
Headnote
Motor Vehicles Act, 1988 - Section 4 (3) - Section 7 (2) - Section 10 (3) - Section 14 - Section 149 (2) - Sections 149 (4) and 149 (5) - Vehicle Accident – Insurance - Injured travelled in goods vehicle which is a Minidor auto, bearing registration owned by respondent No. 2 and insured with appellant - Vehicle met with an accident and injured suffered injury on left hand and it was amputated - He filed claim petition – Held, For purpose of recovering compensation amount from insured, insurer shall not be required to file a suit - It may initiate a proceeding before concerned executing court as if dispute between insurer and insured was subject-matter of determination before Tribunal and as if issue is decided against owner and in favour of insurer - A notice shall be issued to insured to furnish security for entire amount - Offending vehicle shall be attached as a part of security - If necessity arises, executing court shall take assistance of concerned Regional Transport Authority - Executing court shall pass appropriate orders in accordance with law as to manner in which insured-owner of vehicle shall make payment to insurer - In case there is any default, it shall be open to executing court to direct realization by disposal of securities to be furnished or from any other property of insured – Petition Disposed Of.
For the Appellant :Ramesh Babu, Advocate.
For the Respondent:S. Umapathy and J. Rankrishanan, Advocates.
G.M.AKBAR ALI, J.
1. The insurance company has preferred the present appeal, challenging the liability on the following two grounds:
(i) that the injured was a gratuitous passenger in a goods vehicle; and
(ii) that the driver did not possess valid and effective licence.
2. Since the liability is challenged, the factum of accident and quantum are not discussed.
3. The admitted facts are as follows:
On 18.7.2007 at 8.10 a.m. the injured travelled in the goods vehicle which is a Minidor auto, bearing registration No. TN 25-E 7580, owned by the respondent No. 2 and insured with the appellant. The vehicle met with an accident and the injured suffered injury on the left hand and it was amputated. He filed claim petition before the Tribunal, claiming compensation.
4. The owner of the vehicle contested and the insurance company resisted the claim taking the two defences that-
(i) the injured was a gratuitous passenger in a goods vehicle; and
(ii) the driver did not possess effective and valid licence.
5. Evidence was let in to show that the injured was a loadman. He had travelled in the Minidor auto to load the cantering materials and during that course, the accident had occurred.
6. The driver was also examined, who produced learner's licence to drive light motor vehicle. The insurance company also examined their Development Officer and RTO and produced the extract of licence.
7. The Tribunal found that the injured was a loadman, covered under the policy and the licence is a valid and effective licence and ultimately fastened the entire liability on the insurance company. Challenging the same, the insurance company is before this court.
8. Mr. C. Ramesh Babu, learned counsel for the insurance company, pointed out that the injured was a loadman and he is not supposed to travel in a goods carrier which is a Minidor. He also pointed out that even assuming that the injured is a loadman, there were no goods being transported in the vehicle and hence the insurance company is not liable.
9. The learned counsel further pointed out that driver is holding only the learner's licence which is not valid and effective to drive the transport vehicle. There is breach of policy condition and, therefore, insurance company ought to be exonerated.
10. On the other hand, Mr. J. Rama-krishnan, learned counsel for the owner of the vehicle, pointed out that there is valid insurance policy covering the load man and the driver was in possession of valid licence and, therefore, the insurance company has to indemnify the owner.
11. The learned counsel also relied on a judgment reported in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), for the proposition what is a valid licence.
12. On the other hand, Mr. S. Umapathy, learned counsel for the claimant, pointed out that the injured is suffering who had lost his left hand in the accident and strives to make a living and it will be very difficult for the claimants to recover from the owner and the insurance company is liable to pay.
13. Heard and perused the materials available on record.
14. As far as the policy is concerned, there is a coverage for the load man and it is evident that the injured had travelled as a loadman and, therefore, the insurance company cannot take a defence that the injured is a gratuitous passenger.
15. As far as licence is concerned, it is proved that the driver was holding learner's licence to drive light motor vehicle. It is admitted that the vehicle was not carrying the load and the unladen weight of the vehicle is below 700 kg making it a Minidor auto. Therefore, the said transport vehicle below the unladen weight can be treated as light weight vehicle as per the settled principles of this court and Apex Court.
16. However, the licence is only a learner's licence. In that event, the principles laid down in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), is applicable.
17. In para 86 of the case-law, it is held as follows:
"(86) Motor Vehicles Act, 1988 provides for gr
