The Branch Manager, National Insurance Co. Ltd. vs M. Mansoor Ali, M. Mallika Begam, Kalil Ahmed @ Kaleel and S.A. Rajamohammed <BR>M. Mansoor Ali and M. Mallika Begam Vs Kalil Ahmed @ Kaleel, S.A. Rajamohammed and The Branch Manager, National Insurance Co. Ltd.

P. Murgesen, J.—This Civil Miscellaneous Appeal is directed against the judgment and decree dated 02.02.2002, passed in MACTOP

No. 238 of 1998 by the Motor Accident Claims Tribunal/Sub Court, Palani.

Before the tribunal, the appellant is the 3rd respondent, respondents 1 and 2 are the claimants and respondents 3 and 4 are the respondents 1

and 2.

The case of the claimants in the petition briefly is as follows:

The petitioners are the parents of the deceased Mohammed Mushtafa @ Shajagan. On the fateful day, i.e. on 24.06.1998 at about 10.00 a.m.,

the deceased Mohammed Mushtafa @ Shajagan was walking along with the second petitioner on the main road at Anna Salai, near Kamarajar

Mandram, Kodaikanal. At that time, a Maruthi van bearing Registration No. TN-57-Z-2501, driven by its driver Kalil Ahmed @ Kaleel, the 3rd

respondent herein, in a rash and negligent manner and dashed against the deceased and his mother and as a result of which, both of them sustained

injuries. The deceased Mohammed Mushtafa @ Shajagan and his mother were taken to Venelan Hospital, Kodaikanal and there the Doctor found

that Mohammed Mushtafa @ Shajagan died. The said Maruthi van belongs to the 4th respondent herein and insured with the appellant. The

deceased is the only child to his parents. So, the respondents 1 and 2, who are the parents of the deceased, have filed a petition claiming a

compensation of Rs. 1,00,000/-.

The 3rd respondent insurance company filed the counter, wherein it was contended that the accident occurred only due to the deceased, who

suddenly crossed the road without following any traffic rules. It is also contended that at the time of accident the driver of the Maruthi van bearing

Registration No. TN-57-Z-2501 has no valid driving licence to drive the van. Driving of the van without proper driving licence is also violation of

policy conditions and hence the insurance company is not liable to pay the compensation. Further, it is also contended that the driver of the Maruthi

van was not responsible for the accident. Hence, the petition is liable to be dismissed.

Before the Tribunal, on the side of the petitioners, the 2nd petitioner examined herself as P.W.1 and marked Ex.P.1 and Ex.P.2 and on the side

of the respondents R.W.1 was examined and Ex.R.1 was marked.

On consideration of the evidence on both sides, the Tribunal fixed the compensation at Rs. 90,000/- (Rupees Ninety Thousand only) with

interest at 9% from the date of petition till the date of deposit.

Challenging the said award passed by the Tribunal, this appeal has been filed by the appellant/3rd respondent. The learned Counsel for the

appellant is not disputing the accident. Even before the trial Court the owner and driver of the Maruthi Van did not appear and contested the case.

So, the finding of the Tribunal regarding the rash and negligence of the driver of the Maruthi Van is confirmed. Now, we have to decide about the

liability of the insurance company.

The point for determination in this appeal is:

(i) Whether the insurance company is liable to pay the compensation to the claimants?

Point (i): On the fateful day, i.e. on 24.06.1998 at about 10.00 A.M., the young boy Mohammed Mushtafa @ Shajagan, aged 3 1/2 years was

walking with his mother on the main road of Anna Salai, near Kamarajar Mandram, Kodaikanal. At that time, a heavy vehicle Maruthi van bearing

Registration No. TN-57-Z-2501 was driven by Kalil Ahmed @ Kaleel, the 3rd respondent herein, in a rash and negligent manner and dashed

against the victim. The vehicle belongs to Raja Mohammed, the 4th respondent herein and insured with the appellant herein. As a result of the

accident the young boy died unfortunately. Hence, a criminal case was registered in Crime No. 153 of 1998 on the file of the Kodaikanal Police

Station.

The learned Counsel for the appellant submitted that the Maruthi Van bearing Registration No. TN-57-Z-2501 was driven the 3rd respondent

herein, who is not having valid licence. So, it is violation of the insurance policy conditions. Hence, the insurance company is not liable to pay the

compensation.

The mother of the deceased Mohammed Mushtafa @ Shajagan is unable to say whether the driver of the Maruthi van is having valid licence or

not. On the other hand, the appellant had taken pain to examine R.W.1 and R.W.2. R.W.1 is the Junior Assistant of the R.T.O. Office,

Periakulam. His evidence would show that Kalil Ahmed @ Kaleel had obtained licence on 22.01.1996 and he can drive light motor vehicles and

the licence is valid up to 21.01.2016 and he is not competent to drive heavy motor vehicles and as such he is not having a valid licence to drive the

Taxi.

The Evidence of R.W.2, who is the Assistant in the appellant Insurance Company would show that the vehicle TN-57-Z-2501 is a Taxi.

Ex.B1 is the driving licence to show that the driver of the Maruthi Van has licence to drive only light weight vehicle. It is the stand of the learned

Counsel for the appellant that a person who is having LMV licence is not entitled to drive Taxi and to drive a Taxi, the person has to obtain a

Badge. To strengthen his case, the learned Counsel for the appellant relied on the decision of the Hon''ble Supreme Court made in National

Insurance Co. Ltd. Vs. Kusum Rai and Others, , and argued that a person who has got licence to drive light weight motor vehicle, but driven

commercial vehicle would amount to violation of insurance policy and the insurance company cannot be compelled to pay the compensation. In this

case the principle laid down by the Honourable Apex Court is squarely applicable. In the light of the above decision of the Honourable Supreme

Court, since the driver was not having valid licence at the time of accident, the insurance company cannot be burdened with liability. Hence, the

insurance company could not be compelled to pay compensation and the owner of the vehicle, who is the 4th respondent herein is liable to pay the

compensation.

Accordingly, this Civil Miscellaneous Appeal is allowed and the appellant insurance company is discharged from its liability and the 4th

respondent alone is liable to pay the compensation to the claimants. The appellant is entitled to costs in this appeal from the 4th respondent herein.