Advocates:
['M/S SREEVIDHYA', 'M/S E KANNADASAN', '', 'M MACHAVATHARAN', 'R - NDW IN MPS', 'II BATTA WITH PETITION', 'DUE REG R']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.03.2017

CORAM

THE HON'BLE MR.JUSTICE G.CHOCKALINGAM

C.M.A.No.1325 of 2010

and M.P.No.1 of 2010 and

C.M.P.No.3517 of 2017

ICICI Lombard General

Insurance Company Ltd.,

Swarnambigai Towers,

Omalur Main road,

Salem-9.

.. Appellant/IInd respondent

Vs .

1.R.Sellam

2.Minor.R.Dineshkumar

3.Minor R.Dhivya

(Minor petitioners are represented

by next friend Guardian & Mother

Sellam.)

4.K.Marimuthu

5.Ponnammal

6.K.Ravichandran

..Respondents/Petitioner 1to5/

1st Respondent

Prayer: Civil Miscellaneous Appeal filed under Section 173 of

the Motor Vehicles Act 1988, against the judgment and decree

dated 11.08.2009 made in M.C.O.P.No.570 of 2007 on the file of

the Motor Accidents Claims Tribunal, (Principal District Judge)

Salem.

For Appellant

: Mrs.R.Sreevidhya

For R1 to R5

: Mr.E.kannadesan

JUDGMENT

This civil miscellaneous appeal is directed against the

judgment and decree dated 11.08.2009 made in M.C.O.P.No.570 of

2007 on the file of the Motor Accidents Claims Tribunal,

(Principal District Judge) Salem.

2. In this Civil Miscellaneous Appeal, the question for

consideration is -

https://hcservices.ecourts.gov.in/hcservices/

“Whether the insurer has to be exonerated

totally in a case where they have established

that the driver of the insured vehicle did not

possess any type of licence on the date of

accident or whether the liability can be

fastened on the insurer by directing them to

pay the compensation to the claimants with a

liberty to recover the same from the insured.”

3. In a catena of judgments, the Hon'ble Apex Court has

dealt with the liability of the Insurance Company while

interpreting Section 149(2)(a)(ii) and the proviso appended to

Sub Sections 4 and 5 of the Motor Vehicles Act, 1988. A Full

Bench of this Court in Nagammal's case reported in 2009(1) LW

702 (Branch Manager, United India Insurance Co.Ltd., Dharmapuri

Town Vs. Nagammal and others), was considering a question of pay

and recovery and the Full Bench has held as follows:-

“31. Thus from an analysis of the statutory

provisions as explained by the Supreme Court in

various decisions rendered from time to time, the

following picture emerges :

(i) The Insurance Policy is required to cover

the liability envisaged under Section 147, but

wider risk can always be undertaken.

(ii) Section 149 envisages the defences which

are open to the Insurance Company. Where the

Insurance Company is not successful in its

defence, obviously it is required to satisfy the

decree and the award. Where it is successful in

its defence, it may yet be required to pay the

amount to the claimant and thereafter recover

the same from the owner under such circumstance

envisaged and enumerated in Section 149(4) and

Section 149(5)."

4. The First Bench decision of this Court at Principal

seat reported in 2010(2) TAMAC 542 (DB) (Bajaj Allianz General

Insurance Company Ltd., Pune Vs. P.Manimozhi and others) had

considered the question of non possession of a valid licence of

the driver and after considering the decision of another

Division Bench reported in 2009(2) TNMAC 103 DB (United India

Insurance Company Ltd., Vs. S.Saravanan) held that when there is

a breach of condition under an insurance policy, then the

Insurance Company must pay and recover. It is necessary to

extract the relevant portion from the above decision, which is

as follows:

https://hcservices.ecourts.gov.in/hcservices/

“14. The next contention raised by the

learned counsel appearing for the appellant is

that the third respondent, the rider of the two

wheeler did not have a valid driving licence on

the date of the accident and therefore, the

insurer is not liable to pay. The Hon'ble Supreme

Court as regards this point namely, possession of

valid driving licence broadly classified the same

under four different categories:-

(i)Where, t