Kerala High Court
National Insurance Company Limited vs Minor Viveka on 3 March, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
MACA.No.2104 OF 2007
AGAINST THE AWARD IN OPMV 118/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,
IRINJALAKUDA
APPELLANT:
NATIONAL INSURANCE COMPANY LIMITED,
VASHI BRANCH, PLOT NO.6, PULIN COMPLEX, OPP.A.P.M.C.,
MARKET ROAD II, PHASE II SECTOR-19C, VASHI-400075,, REP.BY
ITS DY.MANAGER, NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL
OFFICE, P.B. NO. 3235, OMANA BUILDINGS, JEWS STREET, PADMA
JUNCTION, KOCHI -682 035.
BY ADV. SRI.LAL GEORGE
RESPONDENTS:
1 MINOR VIVEKA
AGED 12 YEARS
D/O. LATE MR. VENUGOPAL, VALLATH HOUSE, CHANTHAPURA,,
LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK, REP.BY, HER
MOTHER, MRS. AMBIKA VENUGOPAL, W/O. LATE MR.,
VENUGOPAL,VALLATH HOUSE, CHANTHAPURA, LOKAMALESWARAM
VILLAGE, KODUNGALLUR TALUK.
2 MR. VIRAJ SHETTY
VISWA SANTHIL HOUSE, ANJAR VILLAGE, HIRADKA P.O., UDUPI,
KARNATAKA STATE.
3 MR. HARISCHANDRA PRAJAPATHY (DELETED)
S/O. MR. KUBER, PLOT NO.33-0-5, LONAGUDY.
( THE NAME OF 3RD RESPONDENT IS DELETED FROM PARTY ARRAY
AT THE RISK OF THE APPELLANT UNDER ORDER DTD 16.6.2010 OM
IA 1424/2010.)
R1 BY ADV. SRI.V.BINOY RAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03.03.2021, ALONG WITH MACA.2190/2007, MACA.57/2008, MACA.483/2008,
MACA.483/2008(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 2104 & 2190 of 2007
57 and 483 of 2008 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
MACA.No.2190 OF 2007
AGAINST THE AWARD IN OPMV 119/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,
IRINJALAKUDA
APPELLANT:
NATIONAL INSURANCE CO.
VASHI BRANCH, PLOT NO.6, PULIN COMPLES,, OPP.A.P.M.C.MARKETT
ROAD II, PHASE II SECTOR-19C,, VASHI - 400 705. REP. BY ITS
DY.MANAGER, NATIONAL, INSURA
BY ADV. SRI.LAL GEORGE
RESPONDENTS:
1 AMBIKA VENUGOPAL, AGED 36 YEARS,
W/O.LATE MR.VENUGOPAL, VALLATH HOUSE,, CHANTHAPURA,
LOKAMALESWARAM VILLAGE, KODUNGALLUR, TALUK.
2 MINOR VIVEKA AGED 12 YEARS S/O.LATE
VENUGOPAL, VALLATH HOUSE, CHANTHAPURA,, LOKAMALESWARAM
VILLAGE, KODUNGALLUR TALUK, REP. BY, HER MOTHER, MRS.AMBIKA
VENUGOPAL, W/O.LATE, MR.VENUGOPAL, VALLATH HOUSE,
CHANTHAPURA, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK
REPRESENTED BY HER MOTHER, MRS. AMBIKA VENUGOPAL
3 MINOR VISHNU AGED 10 YEARS S/O.LATE
VENUGOPAL, VALLATH HOUSE, CHANTHAPURA,, LOKAMALESWARAM
VILLAGE, KODUNGALLUR TALUK, REP. BY HIS MOTHER MRS.AMBIKA
VENUGOPAL
4 MRS.JANAKY AMMA AGED 74 YEARS
W/O.LATE ACHUTHAN NAIR, AND M/O LATE MR.VENUGOPAL VALLATH
HOUSE, CHANTHAPURA,, LOKAMALESWARAM VILLAGE, KODUNGALLUR
TALUK.
5 VIRAJ SHETTY VISHWASANTHI HOUSE
ANJAR VILLAGE, HIRIADKA P.O., UDUPI, KARNATAKA STATE.
6 MR.HARISHCHANDRA PRAJAPATHY
S/O.MR.KUBER, PLOT NO.33-0-5,, LONAGUDY.
(6TH RESPONDENT MR.HARISHCHANDRA PRAJAPATHY, S/O MR.KUBER
PLOT NO.33-0-05 IS DELETED FROM THE ARRAY OF RESPONENTS AS
PER ORDER DATED 16.6.2010 IN IA 1422/2010 AT THE RISK OF THE
APPELLANT.)
R1 BY ADV. SRI.V.BINOY RAM
M.A.C.A. Nos. 2104 & 2190 of 2007
57 and 483 of 2008 3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03.03.2021, ALONG WITH MACA.2104/2007, MACA.57/2008, MACA.483/2008,
MACA.483/2008(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 2104 & 2190 of 2007
57 and 483 of 2008 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
MACA.No.57 OF 2008
AGAINST THE AWARD IN OPMV 118/2002 DATED 13-07-2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/APPELLANT:
MINOR VIVEKA
D/O. LATE MR.VENUGOPAL, VALLATH HOUSE, CHANTHAPPURA,
LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK, REP. BY HER
MOTHER, MRS.AMBIKA VENUGOPAL, W/O.LATE MR.VENUGOPAL,,
VALLATH HOUSE-DO.
BY ADV. SRI.V.BINOY RAM
RESPONDENTS/RESPONDENTS:
1 MR.VIRAJ SHETTY
VISHWA SANTHI HOUSE, ANJAR VILLAGE, HIRIADKA P.O,
UDUPI,, KARNATAKA STATE.
2 MR.HARISCHANDRA PRAJAPATHY
S/O.MR.KUBER, PLOT NO.33-0-5, LONAGUDY.
3 NATIONAL INSURANCE CO.LTD.
VASHI BRANCH, PLOT NO.6, PULIN COMPLEX,, OPP.
A.P.M.C., MARKET ROAD II, PHASE II SECTOR, 10C, VASHI-
400 705.
R3 BY ADV. SRI.LAL GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03.03.2021, ALONG WITH MACA.2104/2007, MACA.2190/2007,
MACA.483/2008, MACA.483/2008(B), THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A. Nos. 2104 & 2190 of 2007
57 and 483 of 2008 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
MACA.No.483 OF 2008
AGAINST THE AWARD IN OPMV 119/2002 DATED 13-07-2007 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANTS/PETITIONERS:
1 AMBIKA VENUGOPAL
W/O. LATE VENUGOPAL, VALLATH HOUSE, CHANTHAPURA,,
LOKAMALSWARAM VILLAGE, KODUNGALLUR TALUK.
2 MINOR VIVEKA,D/O LATE VENUGOPAL,
-DO- -DO- REPRESENTED BY HER MOTHER,MRS. AMBIKA VENUGOPAL
-DO- -DO-.
3 MINOR VISHNU
S/O.LATE VENUGOPAL
-DO- -DO- REPRESENTED BY HIS MOTHER, MRS. AMBIKA VENUGOPAL,
VALLATH HOUSE, -DO- -DO-.
4 MRS. JANAKY AMMA
W/O. LATE ACHUTHAN NAIR & M/O. LATE MR.VENUGOPAL, -DO- -DO-
BY ADV. SRI.V.BINOY RAM
RESPONDENTS/RESPONDENTS:
1 VIRAJ SHETTY
VISHWASANTHI HOUSE, ANJAR VILLAGE, HIRIADKA P.O.,UDUPI,
KARNATAKA STATE.
2 HARISCHANDRA PRAJAPATHY
S/O. MR. KUBER, PLOT NO.33-0-5, LONAGUDY.
3 NATIONAL INSURANCE CO. LTD.
VASHI BRANCH, PLOT NO.6, PULIN COMPLEX, OPP. A.P.M.C.
MARKET-II, PHASE-II SECTOR-19C,, VASHI-400705.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03.03.2021, ALONG WITH MACA.2104/2007, MACA.2190/2007, MACA.57/2008, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 2104 & 2190 of 2007
57 and 483 of 2008 6
P.V.KUNHIKRISHNAN, J
-------------------------------------
M.A.C.A. Nos. 2104 & 2190 of 2007
and
57 & 483 of 2008
--------------------------------------
Dated this the 3rd day of March, 2021
JUDGMENT
These four appeals are connected and therefore, I am disposing these four appeals by a common judgment. MACA Nos. 2104/2007 and MACA No. 57/2008 are filed challenging the same award in O.P.(M.V.) No.118/2002. Similarly, MACA No.2190/2007 and MACA No.483/2008 are filed challenging the same award in O.P.(M.V.) No. 119/2002. The appellant in MACA No.2104/2007 is the 3rd respondent-Insurance Company and the appellant in MACA No.57/2008 is the claimant in the above O.P.(M.V.). The appellant in MACA No.2190/2007 is the Insurance Company/3rd respondent in O.P.(M.V.) No.119/2002 and the appellant in MACA No.483/2008 is the claimant in the claim petition.
M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 7
2. The short facts are like this :
On 19.11.2001 at 8.15 am, the minor petitioner in O.P.(M.V.) No.118/2002 and her father, Venugopal were riding a motor cycle bearing registration No. KL-8 G 6009. The minor was the pillion rider. At the place of accident, a lorry bearing registration No. KA-20/3012 driven by the 2 nd respondent in the claim petition hit on the motor cycle resulting in a major accident, in which the minor petitioner in O.P.(M.V.) No.118/2002 sustained serious injuries and her father Venugopal died due to the head injury sustained in the accident. O.P.(M.V.) No. 119/2002 is the application for compensation filed by the legal heirs of deceased Venugopal including the petitioner in O.P.(M.V.) No. 118/2002. The 4 th petitioner in O.P.(M.V.) No. 119/2002 is the aged mother of Venugopal and petitioners 1 to 3 are the wife and children. According to the claimants, the accident occurred due to the rashness and negligence on the part of the 2 nd respondent, who M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 8 is the driver of the offending heavy vehicle lorry bearing registration No.KA-20/3012.
3. O.P.(M.V.) Nos.118/2002 and 119/2002 were tried together. To substantiate the case, claimants produced Exts.A1 to A34. One witness was examined on the side of the claimants as PW1. After going through the evidence and documents, the Tribunal allowed the petitions. The petitioner in O.P.(M.V.) No. 118/2002 is allowed to realise a compensation of Rs.76,300/- from the respondents jointly and severally with interest at the rate of 6% per annum from the date of petition till realisation. As far as O.P.(M.V.) No. 119/2002 was concerned, the claim was allowed and the claimants are allowed to realise a compensation of Rs.3,29,500/- from the respondents jointly and severally. Aggrieved by the quantum of compensation, the claimants in O.P.(M.V.) Nos. 118/2002 and 119/2002 filed MACA Nos.57/2008 and 483/2008. The 3rd respondent- Insurance Company filed MACA Nos. 2104/2007 and 2190/2007 mainly contending that the driver of the offending M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 9 vehicle was not having licence and badge. It was a heavy vehicle. Hereinafter the parties are mentioned in accordance with their rank before the Tribunal.
4. The counsel for the 3rd respondent-Insurance Company contended that the Insurance Company may be exonerated from paying the compensation for the simple reason that the 2nd respondent, who is the driver of the heavy vehicle bearing registration No.KA-20/3012 was not having a licence or badge. In such circumstances, the Insurance Company is not liable to pay the compensation because of the violation of the policy conditions. The counsel for the 3 rd respondent submitted that in the written statement filed by the Insurance Company, it was specifically contended that the driver of the insured vehicle was not having a valid driving licence and authorisation to drive transport vehicle on public road. According to the counsel, the appellant company had filed I.A.No.2217/2005 seeking for a direction to produce driving licence and authorisation to drive transport vehicle on M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 10 public road. The Tribunal already allowed that application directing the parties concerned to produce necessary documents before the Tribunal. Service of notice in the said petition was effected by the paper publication. The counsel submitted that the driver did not produce any documents before the Tribunal. Therefore, the liability fixed on the 3 rd respondent-Insurance Company is not sustainable.
5. This point is considered by the Tribunal in para No.14 of the impugned award, which is extracted hereunder :
14: "Now the question is who is liable to make payment of the compensation and also how the compensation should be apportioned. The 3rd respondent has admitted the policy of insurance subject to the contention that the 2 nd respondent had no licence or badge at the time of the accident and that the accident occurred due to the rashness and negligence on the part of the deceased. But such a case of the insurer on facts stands not proved. The insurance company has also not produced any document to prove the other case that the 2 nd respondent had no licence or badge at the time of the accident. It is true that the 3rd respondent had obtained an order for the production of the driving licence of the 2 nd respondent, but the said order was obtained against an exparte respondent. In a case like this the burden is on the insurance company to prove the case that the driver had no licence or badge. Simply by obtaining an order for production of licence against an exparte respondent the insurance company cannot rest contend saying the burden of prove is discharged. Ext.A2 charge sheet shows that the police had not initiated prosecution against the 2 nd respondent under Sec. 3 of the M.V.Act. The petitioners had produced a copy of the driving licence of the 2nd respondent, M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 11 but the same was not marked in evidence because it is not an authenticated copy. In view of the said document produced in court the insurance company could have taken the licence number there in and the company could have obtained necessary particulars from the RTA to ascertain whether such a licence is true and valid and whether the 2 nd respondent had obtained badge from the RTA. But the insurance company did not take any such steps in this case to prove the case of violation of policy condition. The Hon'ble Supreme Court has made it clear that the burden is heavy on the insurance company to prove violation of the conditions of policy including the statutory defence available under the law that the driver had no valid licence or badge. In the absence of any evidence on the side of the 3rd respondent this Court finds that the 3 rd respondent is liable to pay compensation as insurer, indemnifying the liability of the 1st respondent as owner of the lorry involved in the accident."
A reading of the above portion of the judgment make it clear that the Tribunal rejected the above contention because in the prosecution against the driver, there is no charge under Sec.3 of the Motor Vehicles Act. The Tribunal also found that there is no evidence on the side of the 3 rd respondent that the 3rd respondent is not liable to pay compensation as insurer. In the order, it is specifically stated that the claimants had produced a copy of the driving licence of the 2nd respondent, but the same was not marked in the evidence, because it is not an authenticated copy. The Tribunal found that in view of the said document produced in court, t he M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 12 Insurance Company could have taken the licence number there and the Company could have obtained necessary particulars from the RTA to ascertain whether such a licence is true and valid and and whether the 2 nd respondent had obtained badge from the RTA. Since the Insurance Company did not take any steps in this case to prove the case of violation of policy conditions, the Tribunal rejected the contention of the 3 rd respondent-Insurance Company. The Tribunal observed that the burden is heavy on the Insurance Company to prove violation of the conditions of the policy including the statutory defence available in law that the driver had no valid licence or badge. Since there is no evidence on the side of the respondents, the Tribunal rejected contention of the 3 rd respondent.
6. Now, the counsel for the appellant submitted that at the relevant time, it was very difficult to get the details of the driving licence from the authorities concerned. That is why it was not produced. The Tribunal already found that a photocopy M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 13 of the driving licence is already there in the file. If that is the case, it is very easy to get the details of the licence from the authorities concerned. In the facts and circumstances of this case, I don't want to burden the Insurance Company, if actually the 2nd respondent is not having the licence and the badge. I think an opportunity can be given to the Insurance Company to adduce further evidence in that regard. MACA Nos. 483/2008 and 57/2008 are filed by the claimants for enhancing the compensation. Since I am remanding the matters for the limited purpose that whether the Insurance Company is liable to pay the amount, I think those appeals also can be allowed with liberty to adduce further evidence to substantiate their claim for getting additional compensation. Therefore, these appeals are allowed.
1. The impugned awards are set aside.
2. The Tribunal will allow the claimants and the respondents to adduce further evidence, oral or documentary, if any.
M.A.C.A. Nos. 2104 & 2190 of 2007 57 and 483 of 2008 14
3. After allowing the parties to adduce further oral or documentary evidence, the Tribunal will pass appropriate orders in the case as expeditiously as possible, at any rate, within 4 months from the date of receipt of a copy of this judgment.
4. I make it clear that, I have not interfered with the compensation already awarded in this case, and the Tribunal will adjust that amount while passing the final orders.
sd/-
P.V.KUNHIKRISHNAN JUDGE SKS