IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 13.04.2022 PRONOUNCED ON : 07.06.2022 C O R A M :

The Hon'ble Mrs. Justice J. NISHA BANU CMA.Nos.75 and 76 of 2012 ----

Vadivel ..Appellant in CMA.75/2012 Rajakhannu ..Appellant in CMA.76/2012 Vs

1.Kamaraj

2.Divisional Manager, United India Insurance Co.Limited No.46, Katpadi Road, Vellore ..Respondents.

In both appeals.

PRAYER : CMAs filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree passed in M.A.C.T.O.P.Nao.163 and 164 of

2009 on the file of Motor Accident Claims tribunal, dated 19.8.2011.

For Appellants : Mr.J.F.Terry Chellar Raja for M/s.M.Malar For Respondents : Mr.I.Malar for R2.

JUDGMENT

The above appeals are filed by the claimants for enhancement of the compensation awarded by Chief Judicial Magistrate, [MACT] Tiruvannamalai, (for short, "the Tribunal") vide award dated 19.08.2011 passed in M.A.C.T.O.P.Nos.163/2009 and 164/2009.

2. The appellants/claimants, are the driver and pillion rider and they sustained injuries in the accident that occurred on 08.05.2009. According to the appellants, on 08.05.2009 when they were returning from Tiruvannamalai to their house in two wheeler bearing Reg.No.TN 22.BX.5260, a two wheeler bearing Reg.No.TN 25 K 1397 owned by 1^st respondent and insured with 2^nd respondent, came from opposite direction in a rash and negligent manner and hit the appellants vehicle, thereby both sustained injuries and they claimed compensation of Rs. 5,000/- (MCOP.163/2009) and Rs.5,00,000/-

(MCOP.No.164/2009) respectively.

3. The Tribunal on a scrutiny of the entire evidence led before it held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle viz., Two wheeler bearing registration No. TN 25 K

1397.The tribunal also found that even though the 1^st respondent’s vehicle was insured with the 2^nd respondent-Insurance Company, since on the date of accident, the rider of the two wheeler was not having valid driving licence, which resulted in violation of policy conditions, the 2^nd respondent-Insurance company is not liable to pay the compensation and it is only the 1^st respondent owner of the vehicle to pay the compensation.

4. The Tribunal having gone into entire evidence both oral and documentary, found that claimant in MCOP.No.163/2004 sustained only simple injuries and so, awarded Rs.8,000/- as compensation. In M.C.O.P.No.164/2004, the claimant was found to be sustained two grievous injuries and 2 simple injuries and also sustained 40% disability, therefore, awarded Rs.55,000/- as compensation.

5. Now, the appellants/claimants have filed the present appeals seeking enhancement of compensation and also seeking a direction to modify the award as pay and recovery since the insurance company failed to take necessary steps to show that there was no valid driving licence for the rider of the vehicle.

6. During the course of arguments, this court specifically raised a question as to whether the offending vehicle was insured at the relevant point of time. To the said question, the learned counsel for the 2^nd respondent- Insurance company answered that the insurance policy of the offending vehicle is not disputed but only the driver of the vehicle did not have the valid driving licence and inasmuch as there is violation of policy condition, the insurance company is exonerated from the liability and pleaded that the said finding shall be confirmed.

7. The learned counsel for the 2^nd respondent relied on the decision in the case of Oriental Insurance Co. Ltd., Pondicherry Vs. Anbu Thiagarajan and another [2009 (2) TNMAC 364] and submitted that when 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 owner has to satisfy the award.

8. I have heard the learned counsel appearing for either side and perused the records carefully. In the case of third party risks, as per th