Back
2018 Supreme(Mad) 2182
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ABDUL QUDDHOSE, J.
United India Insurance Co. Ltd., Branch Office - Petitioners
Versus
Mr. S. Madhurajan - Respondents
C.M.A.No.572 of 2008
Decided On : 14-08-2018
For the Appellant : Mr. T. Ravichandran.
For the Respondents: M/s. MA. P. Thangavel, M/s. R. Syed Mursafa.
The obligation of the insurance company to meet liability arising from the use of the vehicle on public roads governed solely by the contract of insurance and the application of the pay and recovery doctrine.
Headnote:
Fitness Certificate - Motor Accident Claims - CDJ 2018 SC 793, CDJ 2012 MHC 2293, CDJ 2017 MHC 5242 - The court discussed the absence of a fitness certificate for the vehicle involved in the accident and the application of the pay and recovery doctrine. It emphasized the obligation of the insurance company to meet liability arising from the use of the vehicle on public roads governed solely by the contract of insurance.
Fact of the Case:
The Insurance Company appealed the tribunal's award directing it to pay compensation for injuries caused by a vehicle without a fitness certificate.
Finding of the Court:
The court found that the absence of a fitness certificate warranted the application of the pay and recovery doctrine, modifying the tribunal's decision to allow the appellant to recover the compensation amount from the owner of the vehicle.
Issues: The absence of a fitness certificate and the application of the pay and recovery doctrine.
Ratio Decidendi: The court held that the obligation of the insurance company to meet liability arises from the use of the vehicle on public roads governed solely by the contract of insurance, emphasizing the application of the pay and recovery doctrine in such cases.
Final Decision: The appeal was partly allowed, and the tribunal's decision was modified to allow the appellant to recover the compensation amount from the owner of the vehicle.
1. The instant appeal has been filed by the Insurance Company challenging the Award dated 20.10.2005 passed in MCOP No.852 of 2004 on the file of the Motor Accident Claims Tribunal ( Additional District Judge, Fast Tract Court-II ,Salem ).
2. The brief facts leading to the filing of the instant appeal are as follows;
(i) The 2nd respondent herein is the owner of the vehicle bearing Registration No.TN-28-X-7070 and the said vehicle has been insured with the appellant Insurance Company.
(ii) The 1st respondent/claimant preferred a claim petition before the tribunal alleging that the above said vehicle had hit the 1st respondent on 26.1.2004 and caused injuries to him.
(iii) The Tribunal, by its award dated 20.10.2005, directed the appellant/Insurance Company to pay a sum of Rs1,12,313/- together with interest at the rate of 7.5% per annum from the date of claim till the date of realisation.
(iv) Aggrieved by the Award of the tribunal, the instant Civil Miscellaneous Appeal has been filed.
3. Heard Mr.T. Ravichandran, learned counsel for the appellant and Mr. MA.P. Thangavel, learned counsel for the 1st respondent and Mr. R. Syed Mursafa, learned counsel for the 2nd respondent.
4. According to the learned counsel for the appellant, the vehicle which was involved in the accident did not have fitness certificate on the date of the accident. According to him, it is also the admitted case of the 2nd respondent as seen from the evidence placed before the tribunal that the vehicle did not have fitness certificate. Therefore, according to the learned counsel for the appellant, the tribunal ought to have directed the appellant to pay the compensation to the 1st respondent and recover the same from the 2nd respondent Insurance Company.
5. Learned counsel for the appellant has relied upon the judgments of the Honourable Supreme Court in the case of Rani and others Vs National Insurance Company Ltd and others reported in (CDJ 2018 SC 793) and a Division Bench Judgment of this Court in the case of Iffco Tokyo General Insurance Co. Ltd. Vs. A. Jafer Sadiq & others reported in CDJ 2012 MHC 2293 and the decision of a learned Single Judge of this Court in the case of United India Insurance Company Limited, Branch office, Dharmapuri Vs. Sidheshwaran and another reported in CDJ 2017 MHC 5242 to emphasise his contention that when the vehicle is not having a valid permit or fitness certificate at the time of accident, pay and recovery ought to have been granted in favour of the Insurance Company.
6. Learned Single Judge of this Court in the judgment relied upon by the learned counsel for the appellant in the case reported in CDJ 2017 MHC 5242 (cited supra), after following the Division Bench judgment of this Court reported in CDJ 2012 MHC 2293 referred to supra, has held that when there is no pleading to the effect that the ambulance had Fitness Certificate on the date of accident, the obligation of Insurance Company to meet liability arises out of use of vehicle on public road governed solely by contract of insurance, and if question arises whether there was any violation of policy condition, initial burden is on Insurance Company to provide facts concerning it, and once it is so provided , burden shifts to insurer/owner of the vehicle to provide necessary particulars to disprove the same.
7. In that case, the appellant/Insurance Company was directed to pay compensation amount determined by the tribunal and thereafter, recover the same from the owner of the vehicle involved in the accident.
8. In the instant case, according to the learned counsel for the appellant there was no fitness certificate for the vehicle on the date of the accident.
9. Applying the decisions referred to above, the learned counsel for the appellant submits that the tribunal has erroneously passed the Award permitting the appellant to pay the compensation amount and recover the same from the owner of the vehicle.
10. Per contra, the learned counsel for the 2nd respondent/owner o
