Kerala High Court
M.John vs K.Haris on 6 August, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934
MACA.No. 3173 of 2009 ( )
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OPMV.108/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KALPETTA
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APPELLANT/IST RESPONDENT IN OP(MV):
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M.JOHN, S/O.VARGHESE, AGED 58 YEARS,
MANIKKAL HOUSE, KATTAYADU POST, VELLAMUNDA
WYNADU DISTRICT.
(OWNER CUM DRIVER OF JEEP NO.KL-11 E/5979).
BY ADV. SRI.JOSE J.MATHAIKAL
RESPONDENT/PETITIONER AND 2ND RESPONDENT IN OP(MV):
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1. K.HARIS, AGED 20 YEARS, S/O.AHMED,
KATTUMADATHIL HOUSE, THARUVANA POST
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK
WYNADU DISTRICT.
2. THE NEW INDIA ASSURANCE COMPANY LTD.,
KALPETTA BRANCH, M G T BUILDING,
KALPETTA NORTH POST, WYNADU DISTRICT
REP.BY ITS MANAGER (INSURER OF JEEP NO.KL-11/5979).
R1 BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR)
BY ADV. SRI.N.T.NANDAKUMAR (PARAVUR)
BY ADV. SRI.BINNY THOMAS
R2 BY ADV. SRI.K.C.SANTHOSHKUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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M.A.C.A. No.3173 of 2009.
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Dated this the 6th day of August, 2012.
JUDGMENT
Ramakrishna Pillai, J.
The owner-cum-driver of a jeep, which met with an accident on 27/1/2003, is in appeal. The appellant, while driving his jeep along the National Highway, hit the claimant down, who was riding a motorcycle, allegedly, due to the negligence of the appellant. The appellant was charge sheeted under Sections 279 and 338 of IPC. The learned Tribunal found negligence against him and the claimant was awarded a sum of `42,740/- as compensation with interest. The second respondent insurance company, with which the vehicle was insured at the relevant time, was directed to pay the compensation to the claimant. However, it was directed that the second respondent can recover the same from the appellant after effecting the payment, as it was found that the appellant was not having a valid badge at the relevant time. In this appeal, the appellant is challenging the above direction.
M.A.C.A No.3173 of 2009 -:2:-
2. During the course of argument, the learned counsel for the appellant relied on a decision of the Apex Court in National Insurance Co. Ltd v. Swaran Singh (2004 (1) KLT 781), which was followed by this Court in P.T.Moidu v. Oriental Insurance Co. Ltd and Others (2007 (4) KHC 385) and in New India Assurance Co. Ltd. v. Balakrishnan and Others (2011 (4) KLT 412). It was held by the Apex Court that the mere absence of badge to drive a commercial vehicle is not sufficient, but, it must be proved that it was the reason for the accident and then only, insurance company can get exonerated from the liability of paying compensation to a third party.
3. The reason is that innocent victims of mere accidents shall not be denied compensation on technical reasons. However, the decision of the Apex Court in Swaran Sing's case (cited supra) cannot be quoted as an authority for the preposition that the insurer cannot be allowed to recover the amount of compensation from the registered owner, who was at fault after effecting payment. It is relevant to note the observations made by the Apex Court in paragraph (76) of the judgment which reads as follows: M.A.C.A No.3173 of 2009 -:3:-
"..............Sub-s.(5) of S.149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if at all the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to Sub-s.(7) of S.149 of the Act, to which pointed attention of the court has been drawn by learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-s.(1) thereof. The right to avoid in terms of sub-s.(2) of S.149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. When admittedly no licence was obtained by a driver."
In the decretal portion of the judgment also, it was found as under:-
"(ix) The Claims Tribunal constituted under S.165 read M.A.C.A No.3173 of 2009 -:4:- with S.168 is empowered to adjudicate all claims in respect of the accidents involving death or bodily injury or damage to property of third party arising from use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims, inter se, between claimant or claimants on one said and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in S.174 of the Act for enforcement and execution of the award in favour of the claimants."
"(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of S.149(2) read with sub-s.(7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amount which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under S.174 of the Act as M.A.C.A No.3173 of 2009 -:5:- arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-s. (3) of S.168 of the Act the insured fails to deposit the amount awarded in favour of the insurer, within thirty days from the date of announcement of the award by the Tribunal."
4. The argument advanced by the learned counsel for the appellant that the insurer cannot recover the amount of compensation from him, does not appear to be convincing, in the light of the observations made by the Apex Court.
5. In this case, the appellant's vehicle was a transport vehicle. The appellant, who himself was the registered owner, was driving the vehicle at the relevant time. He was fully aware that he was not having a valid badge at the time of the accident. It is also relevant to note that the only contention raised by the appellant in the written statement was that there was negligence on his part and the vehicle was covered by a valid policy, issued by the respondent insurance company. As per law, the driver of a transport vehicle should possess a valid badge. It is one of the conditions of the policy issued by the respondent insurance company that the driver should possess a valid driving licence, if they are to be fastened M.A.C.A No.3173 of 2009 -:6:- with the liability of paying compensation. It is true that the insurance company cannot avoid the liability of paying the compensation to a third party, who is the victim of the accident. However, as there was violation of the policy conditions, the insurer has every right to recover the sum from the registered owner, after effecting the payment.
6. In this case, the registered owner himself was driving the vehicle at the relevant time and he was not holding a badge to transport the vehicle. If the contention raised by the appellant is accepted, we will be giving unnecessary hedge to a wrongdoer.
7. On a consideration of the entire facts of this case, we see no reason to interfere with the direction of the Tribunal that the second respondent can recover the amount of compensation from appellant after effecting the payment.
In the result, the appeal fails and accordingly it is dismissed.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE krj