Kerala High Court
Icici Lombard General Insurance ... vs M.D. Devasia @ Jose on 17 February, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941
MACA.No.1913 OF 2012
AGAINST THE AWARD IN OPMV 1308/2007 DATED 08-02-2012 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM
APPELLANT:
ICICI LOMBARD GENERAL INSURANCE COMPANY,
KOTTAYAM, NOW REPRESENTED BY JAYACHANDRAN R.,
MANAGER LEGAL, ICICI LOMBARD GENERAL INSURANCE
COMPANY, KANNKERY ESTATE, SHANMUGHAM ROAD,
ERNAKULAM.
BY ADV. SRI.AGI JOSEPH
RESPONDENTS:
1 M.D. DEVASIA @ JOSE,
AGED 62 YEARS, S/O.DEVASIA, MANJANKAL HOUSE
(KALLAMMAKKAL), CHENAPPADY P.O., KOTTAYAM,
PIN - 686 520 (PETITIONER IN THE ORIGINAL
PETITION).
2 P.J.BABY @ BOBBY,
PALOOPARAMPIL, KUMARANALLOR P.O., KOTTAYAM,
PIN - 686 016 (FIRST RESPONDENT IN THE
ORIGINAL PETITION).
R1 BY ADV. T.C.SURESH MENON
R1 BY ADV. SRI.P.S.APPU
R1 BY ADV. SRI.A.R.NIMOD
R2 BY ADV. PHILIP T.VARGHESE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 13-02-2020, THE COURT ON 17-02-2020 DELIVERED
THE FOLLOWING:
M.A.C.A.No.1913 of 2012 2
JUDGMENT
The appellant is the 2nd respondent insurer in O.P(MV)No.1308 of 2007 on the file of the Motor Accidents Claims Tribunal, Kottayam, a claim petition filed by the 1 st respondent herein, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 20.05.2007, while he was riding a Honda Activa scooter bearing registration No.KL-5/N-6811. At the place of accident, the scooter was hit by an Innova car bearing registration No.KL-5/X-5551 owned and driven by the 2 nd respondent and insured with the appellant. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to rash and negligent driving of Innova car by the 2 nd respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads.
2. Before the Tribunal, the 2 nd respondent owner-cum- driver of the Innova car filed written statement denying negligence alleged against him. The 2 nd respondent contended that the accident occurred due to the negligence of the part of M.A.C.A.No.1913 of 2012 3 the the 1st respondent/claimant in riding the scooter. The 2nd respondent was holding valid driving licence to drive the Innova car. The 2nd respondent contended further that the compensation claimed is on the higher side.
3. The appellant insurer filed written statement admitting insurance coverage of the Innova car involved in the accident. The insurer contended that, the 2nd respondent owner-cum-driver was driving the Innova car, which was a commercial vehicle, without a valid badge and as such, there is violation of the conditions of policy. The insurer contended further that the compensation claimed is on the higher side. The insurer filed additional written statement, contending that, at the time of accident, the 2 nd respondent insured was using the Innova car, which was a commercial vehicle, for his personal purpose. Since the insured paid no additional premium as per IMT 34, the insurer is not liable to pay compensation to the claimant.
4. Before the Tribunal, Exts.A1 to A19 were marked on the side of the claimant and PWs.1 to 3 were examined. On the side of the respondents, Exts.B1 to B4 were marked as RWs.1 to 3 were examined.
M.A.C.A.No.1913 of 2012 4
5. After considering the pleadings and the evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the Innova car by the 2nd respondent insured, who was charge sheeted by the police in Ext.A6 charge sheet. The 2 nd respondent appeared before the Judicial Magistrate Court-II, Kottayam and pleaded guilty, who was found guilty and sentenced to pay a fine of Rs.2,500/- for the offence under Sections 279, 337 and 338 of the Indian Penal Code, 1860. The Tribunal held that non- possession of badge by the 2nd respondent by itself is not sufficient to establish that insured had violated the conditions of policy. Under various heads, the Tribunal awarded a total compensation of Rs.2,78,390/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 11.09.2007, till date of deposit, with proportionate cost, and the appellant insurer was directed to satisfy the award.
6. The award passed by the Tribunal, to the extent the appellant insurer is held liable to indemnify the 2 nd respondent insured and the award of proportionate cost and Advocates' Fee to the 1st respondent/claimant, is under challenge in this appeal.
M.A.C.A.No.1913 of 2012 5
7. By the order of reference dated 27.06.2016 a Division Bench of this Court stayed the execution of the award in O.P(MV)No.1308 of 2007 on the file of the Motor Accidents Claims Tribunal, Kottayam, on condition that the appellant insurer deposits an amount of Rs.1,40,000/- before the Tribunal, within a period of one month from the date of receipt of a copy of that order.
8. Pursuant to the order of reference dated 27.06.2016, the following questions were referred to a Full Bench of this Court, in order to remove the vagueness in the matter of awarding costs by the Motor Accidents Claims Tribunals, especially with regard to the question of granting proportionate costs, including Advocates' Fee;
1. Whether the Motor Accidents Claims Tribunals must follow the mandate of Rule 195 and Rule 196 of the Kerala Civil Rules of Practice, 1971?
2. Whether the scales of fees prescribed under 'Rules Regarding Fees Payable to Advocates' apply to Advocates in Motor Accidents Claims Tribunals?
3. Whether Rule 6 and Rule 16 of the Advocates' Fee Rules, 1969 are applicable to claim petitions in the light of Rule 381(2) of the Motor Vehicles Rules?
4. Whether the Motor Accidents Claims Tribunals are empowered to award proportionate costs?
M.A.C.A.No.1913 of 2012 6
9. The Full Bench of this Court in its order dated 24.07.2019 - ICICI Lombard General Insurance Company v. Devasia [2019 (3) KLT 652] - answered the reference as follows;
(1) Motor Accidents Claims Tribunals must follow the mandate of Rule 195 and Rule 196 of the Kerala Civil Rules of Practice, 1971.
(2) The scales of fees prescribed under 'Rules Regarding Fees Payable to Advocates' apply to Advocates in Motor Accidents Claims Tribunals. (3) Rule 6 and Rule 16 of the Advocates' Fee Rules, 1969 are applicable to claim petitions in the light of Rule 381(2) of Motor Vehicle Rules, 1989. (4) Motor Accidents Claims Tribunals are empowered to award proportionate costs.
10. Heard the learned counsel for the appellant insurer, the learned counsel for the 1st respondent/claimant and also the learned counsel for the 2nd respondent/insured.
11. During the course of arguments, the learned counsel for the appellant insurer would submit that the Full Bench of this Court in its order dated 24.07.2019 - Devasia [2019 (3) KLT 652] - answered the reference against the appellant insurer. The learned counsel would also point out the decision of the Apex Court in Mukund Dewangan v. Oriental M.A.C.A.No.1913 of 2012 7 Insurance Company Limited [2017 (14) SCC 663] in which it was held that a driver who is having a licence to drive 'light motor vehicle' can drive a transport vehicle, the unladen weight of which does not exceed 7500kg, for which no separate endorsement is required. The law laid down by the Apex Court was followed by this Court in Shaji v. Pradeesh [2018 (2) KLT 136].
12. In view of the law laid down by the Full Bench of this Court in Devasia [2019 (3) KLT 652] and the decision of the Apex Court in Mukund Dewangan [2017 (14) SCC 663] the challenge made in this appeal, against the award passed by the the Motor Accidents Claims Tribunal, Kottayam in O.P(MV)No.1308 of 2007, cannot be sustained in law.
In the result, this appeal fails and the same is accordingly dismissed. Consequently, the order of stay of execution of the award granted on 27.06.2016 is vacated.
No order as to costs.
Sd/-
ANIL K. NARENDRAN JUDGE yd