Kerala High Court
C.Vinayakumar vs Leela on 31 October, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937
MACA.No. 1718 of 2005 ( )
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AGAINST THE AWARD IN OPMV 1649/1997 of MACT,
MUVATTUPUZHA, DATED 31-10-2003.
APPELLANT(S)/APPELLANT:
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C.VINAYAKUMAR, S/O.VELU, CHERIAMMADATHU HOUSE,
MANGATERI P.O., TIRUR,
MALAPPURAM DIST., NOW EMPLOYED AND RESIDING AT P.B.NO. 3959,
SHARJAH, U.A.E, REP.BY HIS BROTHER AND P/A. HOLDER,
SRI.SHABU, S/O.VELU, AGED 33,
CHERIAMMADATHU HOUSE, THALAKKAD VILLAGE, TIRUR,
MALAPPURAM - 676 105.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
RESPONDENT(S):
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1. LEELA, W/O.RAJU, MECHERIYIL HOUSE,
SENKULAM KARA, KUNCHITHANNI VILLAGE.
2. LUKMAN.V.A., S/O.ANTHRU,
VARAPPETTYKUDIYIL HOUSE, SENKULAM KARA,
KUNCHITHANNI VILLAGE.
3. THE ORIENTAL INSURANCE CO.LTD.,
BRANCH OFFICE, KOTHAMANGALAM.
4. V.K.BALAN, S/O.KARUNAKARAN,
VATTAKALLIL HOUSE, PUNNATHALA DESAM, KOOMATHOOR AMSOM,
TIRUR TALUK.
R4 BY ADV. SRI.K.V.SABU
R3 BY ADVS. SRI.MATHEWS JACOB (SR.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 16-02-2016, ALONG WITH MACA NOS.1816/2005, 1834/2005 & 2104/2005,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ss
P.N.RAVINDRAN &
K.RAMAKRISHNAN, JJ.
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M.A.C.A. Nos.1718 of 2005, 1816 of 2005,
1834 of 2005 & 2104 of 2005
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Dated this the 16th day of February, 2016
JUDGMENT
K. RAMAKRISHNAN, J Second respondent in O.P.(MV)No.1649/1997, 1676/1997, 1678/1997 and 1677/1997 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha is the appellant in these cases. The claimants in all these cases have filed the application for compensation for personal injury sustained by them in an accident occurred while they were travelling in the jeep with registration No.KLL/1076 driven by the first respondent, registered in the name of the second respondent and insured with the 3rd respondent. When the vehicle reached the place of occurrence, it capsized and the claimants in these cases sustained injuries M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 2 and they filed the above applications for compensation on various heads. The first respondent entered appearance and filed counter stating that there was no negligence on his part and he is not liable to pay any compensation and he disputed the claims made by the claimants and prayed for dismissal of the applications. The second respondent filed statement with common contention that he had already sold the vehicle to the additional 4th respondent Sri.V.K.Balan, S/o.Karunakaran, Vattakallill House, Punnathala Desom, Koonathoor Amsom, Thrissur Taluk on 22.10.1993 and the first respondent is not his employee and as such he is not liable to pay any compensation. He had also contended that the vehicle was insured with the 3rd respondent and if at all any compensation is payable, they are liable to pay the amount. He had also disputed the other claims made by the claimants in all these cases and prayed for dismissal of the application.
M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 3
2. The third respondent filed counter with common contention admitting the insurance of the vehicle with them, but contended that the first respondent who was driving the vehicle at the time of accident was not holding an effective and valid driving licence. He was not duly permitted to drive a transport vehicle. A mere license to drive the light motor vehicle will not enable the holder of the licence to drive a passenger carrying commercial vehicle, for which he requires a special authorization under the Motor Vehicles Act. Where a person was driving a passenger carrying commercial vehicle on such a mere licence, he is driving without having a valid and effective licence. The jeep was being driven in violation of the permit for carriage of goods. The claimants were travelling in the jeep in violation and in breach of permit and terms of conditions of policy and the vehicle was driven by the first respondent as permitted by the owner knowing that he had no valid driving M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 4 licence and thereby he had committed breach of conditions of policy and as such they are not liable to indemnify the insured. They have further contended that, if or any reason, they are liable to pay the amount, then they may be given right of recovery from the insured. They also denied the allegation of negligence and also the quantum of compensation claimed. The 4th respondent remained absent and did not file any statement. Joint trial was allowed. PWs 1 to 3 were examined and Exts.A1 to A13 were marked on the side of the petitioners. Exts.B1 and B2 were marked on the side of the 3rd respondent and X1(a) and X1(b) were also marked on the side of the claimants. After considering the evidence on record, court below came to the conclusion that the accident occurred due to the rash and negligent driving of the jeep by the first respondent. The tribunal also found that there was no acceptable evidence adduced on the side of the 2nd respondent to prove that he had transfered M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 5 the vehicle and he being the registered owner of the vehicle as on the date of the accident, he is liable to pay the compensation for the negligence of the first respondent. The tribunal also found that since the first respondent was not having badge to drive a transport vehicle found that the insurance company is liable to pay the amount, but liberty was given to them to recover the compensation awarded and deposited by them from the 2nd respondent, the insured. Others have not filed any appeal against the quantum of compensation awarded or the liability. The second respondent in all these cases have filed the above appeals challenging the finding of the court below, permitting the insurance company to recover the amount from him and also not accepting his contention that he was not the owner of the vehicle.
3. Heard the counsel for the appellants in all these cases, namely Sri.Ganesh, representing Sri.Elvin Peter M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 6 P.J. counsel for the appellants, and Sri.Mathews Jacob, senior counsel appearing for the insurance company and Sri.K.V.Sabu, counsel appearing for the 4th respondent.
4. Since the liability of the insurance company is admitted and right of recovery has been granted by the tribunal, for the purpose of deciding the liability between the insured and the insurer, the presence of the claimants is not required and so this court has dispensed with notice to the claimants who are the first respondent in these appeals.
5. Counsel for the appellants in all these appeals submitted that the court below had not properly appreciated the contentions of the 2nd respondent as he had already sold the vehicle and as such there is no liability for him. Further as per the dictum laid down in the decision reported in National Insurance Company Ltd., v. Jisha (2015 (1) KLT 1) and Kulwant Singh and Others v. Oriental Insurance Company Ltd., (2015 (2) SCC 186), M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 7 not holding badge is not a ground to avoid the liability of the insurance company and make the insured liable to indemnify the insurer for the amount paid by them. So according to him, in view of the latest decision, the finding of the court below is not correct and the same is liable to be set aside.
6. On the other hand, the learned counsel for the insurance company in all these cases submitted that as per the policy conditions, a person having effective licence alone is entitled to drive the vehicle and unless it was driven by such person, there is violation of policy condition and they are not liable to indemnify the insured. In this case admittedly the driver was having only licence to drive light motor vehicle and he was not authorised to drive the transport passenger vehicle like one in this case. So according to the learned counsel, the court below was perfectly justified in directing the insurance company to pay M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 8 and recover the amount from the insured.
7. The fact that the appellant herein is the registered owner of the vehicle involved in the accident and the 3rd respondent in the lower court is the insurer of the vehicle is not in dispute. Though the appellant had contended that he had transfered the vehicle on 22.10.1993 and he had no control of the vehicle thereafter, rightly pointed out by the tribunal, no acceptable evidence was adduced on the side of the appellant to prove this fact. Since his name is still there in the registration certificate as well as in the policy, the tribunal was perfectly justified in coming to the conclusion that he is the owner of the vehicle as on the date of accident and he will be primarily liable to pay compensation for the negligence caused on account of his employee, who is the first respondent in the lower court.
8. It is also an admitted fact that the court below while answering the issue regarding the liability of the M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 9 insurance company and the 2nd respondent had observed in paragraph 31 of the common award as follows:
"Ext.A5 (charge sheet) indicates that the 2nd respondent was the registered owner of the vehicle as per the records. The 3rd respondent as admitted that the certificate of insurance issued in favour of the 2nd respondent regarding passenger carrying vehicle No.KLL- 1076 was valid for the period from 15.11.1995 to 14.11.1996. But the 3rd respondent has contended that the 1st respondent was not having the authorization required for driving the vehicle and that therefore, the 3rd respondent is not liable to indemnify the insured. Particulars of the driving licence issued in favour of the 1st respondent is marked as Ext.B2. It shows that the 1st respondent has licence to drive light motor vehicles only and that the licence is valid for the period from 28.06.1995 to 27.06.2015. I.A.No.3053/00 was filed by the 3rd respondent requiring 1st respondent to produce the driving licence and badge. The respondent has not produced the document. The vehicle involved in the accident is a transport vehicle as defined by Section 2 (47) of the M.V.Act adapted to be used for the carriage of passengers. Authorization issued under Rule 11 of the Kerala Motor Vehicles Rules is required for driving transport vehicles.
The Hon'ble High Court of Kerala in the decision M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 10 reported in 2000 (1) KLT 224 has held that the requirement of drivers badge is mandatory. Therefore, I find that there was violation of the condition of the policy regarding requirement of proper licence for the driver. But the 3rd respondent is not liable to be exonerated from the liability on that ground. The Hon'ble High Court of Kerala in the decision reported in 2001(2) KLT 714 has held as follows:
"Since the vehicle has already been insured the mere fact that there is violation of policy would not absolve Insurance Company in honouring commitment of the third parties are concerned. When a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay the third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured."
Therefore, in the light of the decisions cited, I find that the 3rd respondent is liable to pay the compensation payable to the petitioners. The 3rd respondent shall be entitled to recover the said amount from the insured as provided by section 149(4) of the M.V. Act."
9. The court below had relied on the decision reported in Govindankutty Nair v. Gopalakrishnan (2000 (1) KLT 224) and Oriental Insurance Company Ltd., v. Narayanan (2001 (2) KLT 714) for coming to such a M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 11 conclusion. But these aspects have been referred to a larger bench as there were conflicting decisions on this aspect and this has been considered by the larger bench of this court in National Insurance Company Ltd., v. Jisha (2015 (1) KLT 1) and held that, omission to apply for and obtain a badge is purely technical and cannot be said to be a fundamental breach. As far as the proficiency for driving the vehicle is concerned, what is important is the obtaining of a driving licence under the relevant rules. In the same decision, it has been held that in order to get the benefit under Section 149(2) and 149(4) of the Motor Vehicles Act, the insurance company will have to prove that absence of a badge was a fundamental breach which was contributed to the cause of accident. Further in the same decision, it has been observed that a mere technical violation like absence of badge could not lead to such a situation whereby the insurer can avoid liability of the 3rd party. The absence of M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 12 any evidence to show that the breach was so fundamental in causing the accident, there cannot be any automatic direction in allowing the insurance company to recover the amount from the owner also. The Larger Bench has relied on the decision of the apex court in Aiyappan .S. v. M/s. United India Insurance Company Ltd., and Another (2013 (3) KLJ 306) for this proposition.
10. Further the same view has been reiterated by the apex court again in the decision reported in Kulwant Singh and Others v. Oriental Insurance Company Ltd., (2015 (2) SCC 186). That was also a case where the vehicle was driven by a driver who is having only the licence to drive the light motor vehicle and not authorised to drive passenger transport vehicle. While he was driving a passenger vehicle that the incident occurred and in that case, the apex court had held that, mere not holding a badge is not a ground to avoid liability for the insurance M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 13 company and give them a right to recover the amount from the insured and directed the insurance company to pay the amount.
11. So in view of the authoritative pronouncement of the apex court as well as the Larger Bench of this court, the finding of the tribunal that absence of badge will absolve the liability of the insurance company and directing the insurance company to pay the amount and recover the amount from the 2nd respondent, the registered owner of the vehicle under Section 149(4) of the Motor Vehicles Act is unsustainable in law and the same is liable to be set aside and we do so. So the finding of the court below that the 3rd respondent is entitled to recover the amount from the 2nd respondent after satisfying the award is set aside and the 3rd respondent insurance company in the court below is directed to satisfy the award passed by the tribunal in all these cases. So the appeals are allowed and disposed M.A.C.A. Nos.1718 of 2005, 1816 of 2005, 1834 of 2005 & 2104 of 2005 14 of accordingly. Considering the circumstances of the case, parties are directed to bear the respective costs in the appeals.
Sd/-
P.N.RAVINDRAN (JUDGE) Sd/-
K.RAMAKRISHNAN (JUDGE) // True Copy// P.A. to Judge ss