Kerala High Court
National Insurance Company Ltd vs Ramachandran.M
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937
MACA.No. 1197 of 2005 ( )
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AGAINST THE AWARD IN OPMV 798/2002 of M.A.C.T OTTAPPALAM DATED 28.2.05
APPELLANT(S)/APPELLANT:
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NATIONAL INSURANCE COMPANY LTD.,
PALGHAT, REPRESENTED BY ITS ASSISTANT MANAGER
MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G.ROAD
ERNAKULAM.
BY ADV. SRI.LAL GEORGE
RESPONDENT(S):
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1. RAMACHANDRAN.M., S/O.VELAYUDHAN,
AGED 23 YEARS, KALLIVALAPPIL VEEDU, CHERUMBALA
MANNUR, PALGHAT, NOW RESIDING AT
ERANDATH HOUSE, NEAR L.S.N.CONVENT, OTTAPPALAM.
2. PRADEESH, S/O.VELAYUDHAN,
7/190, ODUNGAD, MUNDUR
PALGHAT.
BY ADV. SRI.A.RAJASIMHAN
BY ADV. SRI.K.NIRMALAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
11-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
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M.A.C.A. No. 1197 of 2005
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Dated, this the 11th day of January, 2016
JUDGMENT
Ramachandra Menon, J.
Grievance of the appellant insurance company is that, despite the specific pleadings and materials on record, liability has been fixed upon the shoulders of the Insurance Company to pay the compensation to the claimant who sustained injuries, in spite of the fact that claimant was not having valid driving licence to ride the two wheeler and that the accident was a 'self-invited' one. Grievance is more in so far as the Tribunal has not even granted the right of recovery from the insured, simply observing that the claim was filed under Section 163A of the M.V. Act.
2. The accident was on 11.01.2001. The claimant was proceeding on the motorcycle bearing No. KL14 3689, which belongs to the second respondent herein. While so, he lost control and hit against an electric post, whereby the motorcycle overturned, resulting serious injuries to the rider. This was sought to be compensated by filing claim petition under Section 163A of the Motor Vehicles Act. Pursuant to the notice issued by the Tribunal, the first respondent/ M.A.C.A. No. 1197 of 2005 : 2 : the owner of the motorcycle, filed a written statement contending that the vehicle was taken by the claimant from his house without his consent, as the claimant was a close relative of the first respondent/insured. The contention of the appellant/insurance company was that there was no valid licence to drive the vehicle. The accident occurred was only because of the rash and negligent driving of the claimant himself and as such there may not be any liability for the insurance company to meet the said claim.
3. PW1 and PW2 were examined from the part of the claimants, also producing Exts. A1 to A11. Insurer was got examined as RW1. Exts. B1 to B3 documents were marked from the part of the respondents. Based on the evidence on record, the Tribunal quantified the compensation payable as Rs.1,01,000/-. The liability was fixed upon the insurance company with interest @ 6% and a cost of Rs.1000/-. This in turn is sought to be compensated by way of appeal preferred by the Insurance Company.
4. Heard the learned counsel for the appellant Insurance Company as well as the learned counsel appearing for the first respondent claimant.
5. Initially, notice issued to the first respondent/claimant M.A.C.A. No. 1197 of 2005 : 3 : was returned as 'not known' and notice issued to the second respondent/insured was returned as 'unclaimed'. In the said circumstances, notice to the second respondent/insurer was declared as complete as per order dated 12.06.2015. Since notice ordered to the first respondent was initially not served and returned as 'not known', substituted service was ordered by way of 'paper publication' as per order dated 07.09.2015 and it was pursuant to the said proceedings, that the first respondent/claimant has now turned up.
6. Heard the learned counsel for the appellant and the learned counsel appearing for the claimant in detail.
7. The learned counsel for the appellant submits that the appellant, in support of the contentions raised disputing the liability, had also filed I.A. for production of driving licence of the claimant, but the same was never produced. It is also pointed out that the police had registered a case against the claimant and a copy of the charge sheet was produced as Ext. B2. The learned counsel submits that the claimant was punished for the relevant offence and a fine of Rs.2,000/- was imposed upon him.
8. The fact remains that the I.A. for stay filed by the appellant Insurance Company was dismissed by this Court as per M.A.C.A. No. 1197 of 2005 : 4 : order dated 25.07.2005, holding that in case the appeal was allowed, the insurer would be entitled to recover the amount from the insured. It is submitted by the learned counsel appearing for the appellant that the due amount was deposited by the Insurance Company and that the same was disbursed to the claimants. There is no much dispute with regard to the sequence of events; under which circumstance, the claimant got possession of the vehicle from the insured, who happened to be a near relative of him, and no other vehicle is involved. The liability was solely fixed upon the insured, observing that the Scheme of the Statute, particularly under Section 163 A, stands on a different footing and that the primary liability was upon the insured himself. This Court finds it difficult to accept the said proposition. Scope of the said provision has been made clear by this Court as per the decision reported in 2011 (4) KLT 821 [National Insurance Co. Ltd. Vs. Sinitha]. A Full Bench of this Court had also occasion to consider the same and it has been held that the liability of the insurer is based on the liability of the insured and the said decision is reported in 2012 (2) KLT 132 (FB) [Oriental Insurance Co. Ltd. Vs. Joseph] (to which one of us was also a member). It is true that the decision rendered by the Apex Court in Sinitha's M.A.C.A. No. 1197 of 2005 : 5 : case [cited supra] was subsequently doubted by a co-ordinate Bench and referred the matter to a larger Bench as per the decision reported in 2013 (4) KLT 488 [United India Insurance Co. Ltd. Vs. Sunil Kumar]. It is also settled law, that merely for the reason that the decision rendered by the earlier Bench came to be doubted by a subsequent co-ordinate Bench, passing an order of reference to larger Bench, by itself will never amount to stay of the earlier verdict, nor will it mean that the earlier judgment shall be inoperative. The law declared by the Supreme Court is the law of the land by virtue of Article 141 of the Constitution of India. Unless and until it is varied, the earlier decision remains intact and the reference made by the subsequent Co-ordinate Bench cannot have any adverse consequence in so far as the declaration of the law is concerned. As such, if the accident involved is a self made one, there cannot be any liability for the insurance company to pay the compensation. This being the position, this Court finds that the appellant Insurance Company is entitled to have the due amount recovered from the insured, more so since, causing the vehicle to be driven by a close relative; the registration of crime by the police and subsequent admission of guilt has been vindicated by satisfying 'fine'. True, the Motor Vehicles Act is of course a welfare M.A.C.A. No. 1197 of 2005 : 6 : legislation. But it is for the welfare of the 'victim' and not for the 'wrong-doer'. In spite of sending notice by this Court, the second respondent/insurer paid only scant regards to the process of this Court and the notice was returned 'unclaimed', which amounts to refusal. It appears that the said respondent does not have anything to offer with regard to the merit involved.
In the above circumstances, the Award passed by the Tribunal is modified. We permit the Insurance Company to proceed with further steps to realize the amount satisfied by them, by proceeding against the second respondent/insured.
Appeal stands allowed to the said extent. No cost.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
ANIL K. NARENDRAN, JUDGE kmd /True copy/ P.A. to Judge