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Judgment
S. Manikumar, J.—In the accident, which occurred on 11.08.2010, a child aged about 3 years, was proceeding in a Mahendra School Van bearing Regn. No. TN 24-4404, insured with the appellant-Insurance Company, from her house to school. When the said wan was stopped next to Rajavoor Koot road, a vacant site in Swami Vivekananda Nursery and Primary school for alighting the school children, the deceased got down from the school van and stood back side of the school van to cross the road and reach her school. Without noticing her, the driver of the van, reversed the vehicle and dashed against the child, due to which, she fell down, the wheel ran over the deceased and died on the spot. A case in crime No. 599 of 2010, has be registered against the driver of the school van under Sections 279 and 304-A IPC. At the time of accident, the deceased was stated to be studying in LKG. Claiming compensation of Rs. 10,00,000/-, parents of the deceased child, filed M.C.O.P. No. 7 of 2013, dated 29.07.2013, on the file of the Motor Accidents Claims Tribunal (Special Sub Judge), Tirupattur. The Insurance company has opposed the claim petition, on the ground that they are not liable to pay compensation as the driver of the offending vehicle did not posses a valid and effective driving licence.
Before the claims tribunal, mother of the deceased child, examined herself as P.W. 1 and reiterated the manner of accident. PW2, is an independent eyewitness. On behalf of the respondents/claimants, Ex. P1, FIR, Ex. P2, Postmortem certificate, Ex. P3, Insurance Policy of Van, Ex. P4, Motor Vehicle Inspector''s report and Ex. P5, Trip sheet for Rs. 1,500/-. Officials from Insurance Company and Regional Transport Corporation, were examined as RW1 and RW2, respectively. On behalf of the Insurance company, Ex. R1, Insurance policy of the van, Exs. R2 & R4, driving licences of the van driver and Ex. R3, Requisition given by Inspector of police to Motor Vehicles Inspector, have been marked.
On evaluation of pleadings and evidence, the claims tribunal held that the driver of the van, was negligent in causing the accident and accordingly, fastened liability on the appellant-Insurance company to pay compensation of Rs. 3,91,000/- to the parents of the deceased child. Further, the Claims Tribunal has granted liberty, to the Insurance Company to recover the compensation amount, from the owner of the van, bearing Registration No. TN 24 4404, involved in the accident.
The only challenge in this appeal by the appellant-Insurance Company, is to the finding, fixing liability on the appellant-Insurance Company to pay compensation, on the ground that the owner of the vehicle has violated the policy condition, by allowing the rider, who did not possess a valid and effective driving licence, to ride the motorcycle and therefore, the appellant- Insurance Company ought to have been exonerated from payment of compensation to a third party victim. The said contention is no longer res integra in view of the Division Bench decisions of this Court in The United India Insurance Co. Ltd. Vs. S. Saravanan (Infirmity) rep. by his wife, NF.S. Lalitha and Ravi, , United India Insurance Co. Ltd. Vs. V. Vijayakumar and others, and Bajaj Allianz General Insurance Co. Ltd. Vs. P. Manimozhi and Others, .
The question as to whether, it is open to the insurer to seek for total exoneration for payment of compensation to a third party victim or whether it has only a right of recovery, Section 149(4) and (5) of the Motor Vehicle''s Act, has been extensively considered in ICICI Lombard General Insurance Company v. Annakkili, reported in 2012 (1) TN MAC 226, wherein this Court following the principles of law laid down by the Apex Court and the Division bench judgments that payment of compensation to a third party victim or legal representatives of the deceased, as the case may be, being statutory and considering the interpretation given by the Supreme Court to Sections 147, 149(4) and (5) vis-�-vis the defences open to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act and by holding that the very introduction of the words, "pay compensation to the third party and recover the same from the insured" in Section 149(4) and (5) of the Act, would reflect the divine intention of the legislature to protect the interest of the third parties, vis-�-vis inter-se disputes between the insured and insurer, held that the insurer cannot avoid its liability to pay compensation to a third party, but such avoidance can be made only, if willful breach of terms and conditions of the policy by the insured, by consciously and recklessly allowing the driver, who did not possess a valid and effective driving licence, to drive the vehicle and even if such breach is proved, payment of compensation to the third party victim cannot, at any stretch of imagination, be avoided by the Company and that the only remedy open to the insurer in law is to pay the compensation to the third party victims and recover from the insured. In view of the above, the insurer cannot be totally : exonerated from payment of compensation to third party, but it can avoid its liability only to the insured.
In a recent decision in S. Iyyapan Vs. United India Insurance Company Ltd. and Another, , the Hon''ble Supreme Court, while dealing with a similar contention and after considering a catena of decisions, at Paragraph 17, held as follows:
"Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy."
As the owner of the vehicle, against whom, right of recovery has been granted, has not preferred any appeal, in the light of the decisions made in ICICI Lombard General Insurance Company Ltd. v. Annakkili and others reported in 2012 (1) TNMAC 227 and S. Iyyapan Vs. United India Insurance Company Ltd. and Another, , this Court is of the view that there is no manifest illegality in fastening liability on the appellant-Insurance Company to pay compensation to the respondent/claimant, and then to recover the same, from the owner of the vehicle.
The attitude of the insurance companies, questioning the jurisdiction of the claims tribunals in passing an order of "pay and recover" which implicitly follow the decisions of High Courts and Apex Court, cannot be appreciated. Judicial time is being wasted by simply filing an appeal for getting a stamp of approval from this Court. When decisions made on principles of law or ratio decidendi is binding on all parities, including the High Court under Article 141 of the Constitution of India and invariably, when the insurance companies are impleaded as contesting respondents, whenever private vehicles are involved, appeals are being filed on the very same ground.
Reverting back to the case on hand, though right of recovery has been granted, the present appeal has been filed, on the very same ground stated supra. For better understanding Ground Nos. 2 to 5, are reproduced hereunder.
"2. The tribunal has grossly erred in holding the appellant liable when the vehicle was driven without licence.
The tribunal failed to appreciate that the driving without licence was a serious breach of Motor Vehicles act and Policy by reason for which appellant had no liability.
The tribunal has erred in passing pay and recover order in such a case where there was no driving licence.
The tribunal has failed to appreciate the correct legal position by which power to pass Pay & Recover was not vested with it."
Therefore, this Court is of the view that the recalcitrant attitude of the Insurance Company in filing the appeal does not deserve any merit, rather, deserves to be condemned. Further the attitude of the insurance company in protracting payment of compensation due and payable to the legal representatives, who have lost their minor child aged about 3 years, cannot be appreciated. Therefore, while confirming the order of pay and recovery, this Court is inclined to award cost of Rs. 10,000/- to the appellant-insurance company, to be paid along with the award. The Civil Miscellaneous Appeal is dismissed with costs. Consequently, the connected Miscellaneous Petition is closed. Consequent upon the dismissal of the appeal, the appellant- Insurance Company is directed to deposit the entire award amount with proportionate accrued interests and costs (including the cost of Rs. 10,000/- now imposed), less the amount already deposited, to the M.C.O.P. No. 7 of 2013, dated 29.07.2013, on the file of the Motor Accidents Claims Tribunal (Special Sub Judge), Tirupattur, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the respondents/claimants are permitted to withdraw their share in the award, as apportioned by the tribunal, by making necessary applications before the Tribunal.