Kerala High Court
K.K.Aravindhan vs * 1. K.S.Raveendran on 15 May, 2012
Author: Babu Mathew P. Joseph
Bench: Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935
MACA.No. 2303 of 2013 (D)
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AGAINST THE AWARD IN OPMV 496/2007 of MACT, IRINJALAKUDA
DATED 15-05-2012
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APPELLANT/1ST RESPONDENT:
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K.K.ARAVINDHAN
KARAYIL HOUSE, GRAMALAKSHMI ROAD, KAIPAMANGALAM P.O.
THRISSUR DISTRICT.
BY ADVS. SRI.V.BINOY RAM
SMT.SAJITHA P.SOMAN
RESPONDENTS/PETITIONER/RESPONDENTS 2 & 3:
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* 1. K.S.RAVEENDRAN
S/O.SREEDHARAN, KODUMADATHIL HOUSE, MURIYADU P.O.
VALLILAMKUNNU, THRISSUR DISTRICT PIN - 680 683
2. THILAKAN
S/O.ADIMA, KILIKKOTT HOUSE, NEAR KOZHIPARAMBIL TEMPLE
KOORIKUZHY, KAIPAMANGALAM P.O., THRISSURDISTRICT
PIN - 680 681
3. THE MANAGER
NEW INDIA ASSURANCE CO.LTD, TEMPLE ROAD, NATTIKA P.O.
THRIPRAYAR, PIN CODE - 680 566.
*[RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE
APPELLANT AS PER ORDER DT. 17/02/14 IN IA 472/14 IN MACA 2303/13]
R3 BY ADV. SMT.P.K.SANTHAMMA
R2 BY ADV. SRI.V.M.KRISHNAKUMAR
BY SRI.A.A.ZIYAD RAHMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13-03-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BABU MATHEW P. JOSEPH, J.
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M. A. C. A. No.2303 of 2013
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Dated this the 13th day of March, 2014
JUDGMENT
The short question that arises for consideration is as to whether the Insurance Company is liable to indemnify the owner/insured in the absence of a badge for the driver of a transport vehicle.
2. Heard the learned counsel appearing on both the sides.
3. In a claim for compensation preferred by an injured in a motor accident, the Motor Accidents Claims Tribunal, Irinjalakuda, awarded 26,050/- as compensation under various heads and directed the third respondent Insurance Company to deposit the amount and permitted them to recover the said amount from the appellant, owner of the lorry involved in the accident, for the reason that its driver, the second respondent, was not holding a driving licence at the time of accident. The owner/insured filed this appeal M. A. C. A No.2303 of 2013 -2- challenging the said finding and direction of the learned Tribunal.
4. The appellant has produced Annexure-1 driving licence particulars in this appeal. The accident had occurred on 04-04-2007. Annexure-1 shows that the driver of the vehicle was holding valid driving licence for driving a transport vehicle from 04-03-2005 to 03-03-2008 and, subsequently, it was renewed on 03-04-2008. Hence, as a matter of fact, at the time of accident, the driver of the vehicle was holding a valid driving licence. Therefore, the finding of the learned Tribunal that the driver of the vehicle was not holding a valid driving licence at the time of accident is incorrect. Of course, the Tribunal was compelled to enter such a finding as the owner and driver of the vehicle did not contest the matter before the Tribunal and they were set ex parte. The driving licence was not produced before the Tribunal in such a circumstance. Therefore, based on the statements made in the Final Report in the criminal case M. A. C. A No.2303 of 2013 -3- registered in respect of the accident, the Tribunal entered such a finding. Now the learned counsel for the third respondent Insurance Company submits that since the lorry involved in the accident was a transport vehicle, the driver was legally expected to hold a badge authorising him to drive a transport vehicle. But, Annexure-1 driving licence particulars do not show that the driver of the vehicle was holding a badge enabling him to drive the transport vehicle involved in the accident. Of course, Annexure-1 does not show that the driver was holding a badge at the time of accident. Annexure-1 shows that the driver was holding a valid badge from 04-03-2011 to 03-03-2014. Therefore, it can be found that on 04-04-2007, the date of accident, the driver was not holding a badge.
5. Whether the absence of badge is a valid ground for the Insurance Company to avoid liability? Section 149 of the Motor Vehicles Act enables the Insurance Company to raise certain grounds defending the claim for compensation. But, M. A. C. A No.2303 of 2013 -4- those grounds do not include a ground based on the absence of badge for the driver of a transport vehicle. This Court had occasion to consider as to whether the Insurance Company can avoid liability for the reason that the driver of a transport vehicle was not holding a valid badge at the time of accident in Kuruvilla v. Jijo Joseph (2013 (4) KLT
700) and laid down in paragraph 38 of the judgment as follows :-
"Now I shall revert to the facts of the cases involved in these appeals. Except in M.A.C.A. No.1722 of 2012, the finding entered by the Tribunals concerned is only regarding want of badge/authorisation for the driver to drive the transport/goods vehicle involved. There is also no finding that the absence of such badge/ authorisation in any way contributed to the cause of the accident. Hence, the breach cannot be said to be fundamental as well. Hence in the light of what I have stated above, that by itself cannot exonerate the insurance company from its liability to the third parties (claimants) or, give it a right of recovery of the amount from the insured. The insurers are bound to indemnify the insured. Hence in all the appeals other than in M.A.C.A. No.1722 of 2012, contention of the insurance companies either that it is not liable, or that it is entitled to recover the amount of compensation from the insured on payment of the same to the M. A. C. A No.2303 of 2013 -5- claimants cannot be accepted."
Therefore, unless it is proved that the absence of badge has contributed to the cause of the accident, the Insurance Company cannot avoid their liability under the Insurance Policy. In the case on hand, there is no finding that the absence of badge has contributed to the cause of the accident. Moreover, the Insurance Company has not even attempted to prove that the absence of badge has contributed to the cause of the accident in question. Therefore, the Insurance Company is liable to indemnify the appellant and to pay the compensation to the claimant. The permission granted to the Insurance Company to recover the amount from the appellant is liable to be set aside.
6. In the result, the permission granted to the Insurance Company to recover the amount paid by them to the claimant from the appellant is set aside. The Insurance Company is liable to indemnify the appellant and to pay the compensation to the claimant.
M. A. C. A No.2303 of 2013 -6-
This appeal is allowed as above.
Sd/-
BABU MATHEW P. JOSEPH JUDGE kns/-
//TRUE COPY// P.A. TO JUDGE