MARIYAYEE ALIAS RAJALAKSHMI AMMAL Vs. M BASHEER

JUDGEMENT

(1.) THIS appeal has been preferred by the claimant against the award of the Accidents Claims Tribunal (District Court) Tiruchirapalli, in M.C.O.P.No.64 of 1984. According to the " case of the appellant, on 20.7.1983, at about 9.45 p.m., the appellant, along with husband was walking along Tiruvanaikkaval South Street on the left side of the road. At time, a moped bearing registration No.TNG.9782, and belonging to the first respondent, came driven by one Singaram from the opposite direction and dashed against the appellant, as a result of which she sustained a fracture in her left arm and other injuries. The accident, according to the appellant, took place only on account of the rash and negligent driving the moped of the first respondent by its driver. In respect of that, the appellant prayed compensation in a sum of Rs.50,000 should be awarded to her against the owner and insurer of the vehicle involved in the accident, who are the respondents herein. The respondent did not contest the claim of the appellant, but remained ex parte. In the counter filed by the second respondent, apart from disputing the rash and negligent driving moped it put forward the plea that the amount of compensation claimed was exorbitant disproportionate and no liability could be fastened on it, as the driver of the vehicle did have a valid driving licence at the time of the accident. The tribunal, on a consideration the oral as well as the documentary evidence, found that the rash and negligent driving the moped TNG.9782 by its driver had caused the accident and that the appellant deserved to be awarded compensation in a sum of Rs.12,000 in respect of the injuries sustained her. Considering the plea of the second respondent-insurance company regarding its for the payment of compensation, the tribunal found that the second respondent company had established that driver of the moped, at the time of the accident, held learner " s licence and under the terms of the policy, the liability for payment of compensation could not be fastened on the second respondent-insurance company. Ultimately, the tribunal passed an award in favour of the appellant and against the first respondent for recovery sum of Rs.12,000 together with interest at 15% perannum there on from the date award till the date of payment, if the first respondent defaulted in the payment compensation amount within two months from the date of the award. It is the correctness the award so passed that is challenged in this appeal in which the appellant has prayed the award of the disallowed portion of the compensation in a sum of Rs.38,000.

(2.) LEARNED counsel for the appellant first contended that the tribunal, after determining amount of compensation awardable to the appellant in a sum of Rs.16,000 in respect injuries sustained by her in the accident, erroneously proceeded to deduct Rs.4,000 on ground of lump sum payment. It was also further contended that the quantum compensation awardable to the appellant as fixed by the tribunal in a sum of Rs.16,000 too low, meagre and inadequate and that a higher compensation should have been awarded together with interest at 12% per annum from the date of the claim petition till the date payment. On the other hand, learned counsel for the respondents submitted that regard to the injuries sustained by the appellant in the accident and their after-effects, the tribunal was justified in awarding to the appellant compensation in a sum of Rs.12,000 with interest as provided in the award.

(3.) LEARNED counsel for the appellant next contended that the view taken by the tribunal that the second respondent-insurance company cannot be made liable for the payment of compensation to the appellant, is erroneous. According to learned counsel, though the driver of the vehicle involved in the accident, at the time of the accident, had only a learner licence, that would be a valid driving licence, sufficient to fasten liability on the second respondent-insurance company, for the payment of compensation. Reliance in this connection was placed, amongst others, on the decision reported in National Insurance Co., Ltd., v. A.Babu, 1990A.C.J. 1003: A.I.R. 1990 Mad. 305. Per contra, learned counsel for the second respondent-insurance company, drawing attention to the terms of the policy submitted that one of the conditions in the policy is to exclude its liability in the event vehicle involved in the accident being driven by the holder of a learner " s licence. Attention this connection was also drawn to the decision reported in Ambujam v. Hindustan Insurance Company, 1981 A.C.J. 175. It was also submitted on the basis of Sec.96(2)(b)(ii) of the Motor Vehicles Act (hereinafter referred to as " the Act " ) that a condition excluding liability in respect of vehicles driven by those holding a learner " s licence, as found policy, would be quite in order and the distinction pointed out in National Insurance Co., v. A.Babu, 1990A.C.J. 1003: A.I.R. 1990Mad. 305, in regard to the decision in Ambujam Hindustan Ideal Insurance Company, 1981 A.C.J. 175, would not stand attracted.