National Insurance Company Limited Vs Smt. M. Santhanam and Others

Prabha Sridevan, J.@mdashThis appeal has been filed by the Insurance Company disputing its liability to pay the award amount of Rs. 1,65,000/- with 15% interest on the ground that the driver of the vehicle, which caused the accident, was granted licence to drive one type of vehicle but, at the relevant point of time he was driving another type of vehicle.

2. The facts of the matter are dealt with in detail by the Tribunal and, therefore, they are not repeated, especially when the controversy is only with regard to the above question. The Insurance Company has adduced the evidence necessary to establish the fact that the driver did not have the licence for driving the lorry bearing registration No. TN-69 1011 which caused the accident. They have examined R.W.1, an employee in their Company, and marked Ex.R-1 copy of the policy and Ex.R-2 which is the returned cover of the registered letter sent to the insured asking her to give details of the licence of the driver. Ex.R-3 though marked, does not find a place in the list of documents. But it is referred to in the impugned award. Ex.R-3, the extract of the licence register, has been marked through R.W.2, Junior Assistant working in the office of Licencing Authority, and this clearly shows that the licence given to the driver was only to drive light motor vehicles and not the lorry which is a Heavy Motor Vehicle and therefore the appellant is entitled to recover the compensation that has been paid from the insured. In this regard, the learned counsel for the appellant cited the decision reported in 1994(1) L.W. 567-(National Insurance Company Limited, Gobichettipalayam v. Thulasi and 2 Ors.), wherein a Division Bench of this Court held that when the best evidence that can be adduced by the insurer has been placed before the court, the burden shifts on to the person who wants to prove the positive, namely, that the driver had a licence. The relevant portion of the above cited judgment reads as follows:

"4... The best evidence that can be adduced by the insurer is the relevant record only and it is placed before the Court. Once that is done the burden shifts on to the person who wants to prove the positive, viz., that the driver had a licence. That could have been easily established by the claimant by summoning the records from the office of the licencing authority. On the facts and circumstances of the case, we have no hesitation to hold that the second respondent had no driving licence at all prior to 8-7-1986 and the exclusion clause in the policy of insurance will come into play."

In the present case, it is clear that the respondents have not been able to prove that the driver had the licence to drive a lorry.

3. The learned counsel for the appellant also cited the decision reported in National Insurance Co. Ltd. Vs. Swaran Singh and Others, , in which the Supreme Court has laid down the law applicable when the person has been granted licence to drive one type of vehicle but, at the relevant time he was driving another type of vehicle and the summary of the findings inter alia is that when there is breach of policy conditions, the insurance company is entitled to be reimbursed by the insured for the compensation and the other amounts which it has been compelled to pay to third party under the award of the Tribunal and that such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner u/s 174 of the Act as arrears of land revenue and the certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.

4. With regard to the rate of interest, the learned counsel for the appellant referred to the decision of the Supreme Court reported in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, , wherein the Supreme Court has taken note of the change in economy and the policy of the Reserve Bank of India in lowering the interest rate and accordingly reduced the interest rate to 9% per annum. Therefore, the learned counsel submitted that awarding of interest 15% per annum is on the higher side.

5. The learned counsel for the respondents submitted that since the award itself is low, considering the fact that it is a fatal accident and the breadwinner of the family died, there would be no justification for reducing the interest rate.

6. Per contra, the learned counsel for the appellant submitted that since the date of accident is of the year 1992, the manner in which the Tribunal has calculated the income of the deceased cannot be faulted.

7. We have considered the totality of the circumstance and what would be the just and reasonable compensation to be awarded to the claimants. The family lost their breadwinner and the annual income has been fixed only at Rs. 10,800/-. Though the claimants are the widow, mother and three children, only Rs. 3000/- has been awarded towards loss of love and affection. Nothing has been given towards loss of consortium. Therefore, we are of the view that as regards the interest, the interest could be awarded at the rate of 12% per annum. Since the driver of the insured''s vehicle did not have the licence for driving the lorry, we hold that the appellant is entitled to get reimbursement from the insured in respect of the compensation that they have been made to pay to the third party/claimants by virtue of this accident. Learned counsel for the appellant submits that the appellant has deposited the entire award amount with interest. The appellant Insurance Company is entitled to recover from the insured the amount deposited, without having to initiate separate proceedings to recover the same.

8. The Civil Miscellaneous Appeal is allowed to the extent indicated above. No costs.