Advocates:
['M/S M MALAR', '', 'R CHITHRA DEVI', 'F TERRY CHELLA RAJA', 'M/S T RAVICHANDRAN', '', 'R - NO SUCH PERSON', 'I MALAR']

CMA.75 and 76 of 2012

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

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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.

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CMA.75 and 76 of 2012

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

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CMA.75 and 76 of 2012

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.

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CMA.75 and 76 of 2012

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] an