Kerala High Court
Unknown vs Appellants/ on 17 April, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939
MACA.No. 1504 of 2012
OPMV 317/2008 of THE MACT,KASARAGOD DATED 17-04-2012
APPELLANTS/RESPONDENT NO.2
B.VISHNU BHAT, AGED 55 YEARS,
S/O.SAKKARA NARAYANA BHAT, HOUSE NO 2/453 BAJE HOUSE
IRIYANNI PO MULIYAR KASARGOD TALUK & DISTRICT
BY ADVS.SRI.SURESH KUMAR KODOTH
SMT.HEMALATHA
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 3
1. MUJEEB REHMAN
S/O.BUQUARI SCHEMNAD RESIDING AT NOOR MAHAL CHEMANAD
PO KALANAD VIA, KASARAGOD TALUK & DISTRICT 671 317
2. P.BALAKRISHNAN, AGED 42 YEARS,
S/O.P.GOPALAN NAIR, RESIDING AT PAYAM HOUSE IRIYANNI PO.,
MULIYAR, KASARAGOD TALUK & DISTRICT 671 542
3. THE MANAGER
NEW INDIA ASSURANCE CO LTD BRANCH OFFICE AT GOKUL
BUILDING, PRESS CLUB JUNCTION KASARGOD KASARGOD DISTRICT
671121
R3 BY ADV. SRI.PMM.NAJEEB KHAN
BY SRI.A.A.ZIYAD RAHMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.M.BABU, J.
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M.A.C.A.1504 of 2012
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Dated : 14th February, 2018
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JUDGMENT
1.The accident was on 9.12.2006. The 1st respondent in the appeal sustained injuries in the accident. The motor accident claims tribunal awarded him a compensation of Rs 1,44,250/-. The insurer was directed to honour the award. However, the underwriter was permitted to recover the amount from the owner of the vehicle. The owner of the vehicle is in appeal against the award directing pay and recovery.
2.Heard Sri.Suresh Kumar Kodoth and Sri.P.M.M.Najeeb Khan, the learned counsel for the appellant and the 3rd respondent respectively.
3.The only question involved in the appeal is as to whether the tribunal was right in permitting the insurer to recover the compensation from the MACA.1504/2012 2 owner of the vehicle. The tribunal granted permission to the insurer to recover the amount from the owner on the ground that the driver of the vehicle drove the vehicle at the time of the accident without a badge. Admittedly the vehicle involved in the accident was a transport vehicle. There has been a dispute between the learned counsel as to whether the insurer had taken a contention that the driver of the vehicle did not at all have a valid driving licence. I have perused the written-statement filed by the underwriter. The contention is that the driver at the time of the accident was not having a badge to drive a transport vehicle. No contention is seen to have taken that the driver did not have a licence at all at the time of the accident. It is true that it is also contended that the owner of the vehicle knew that the driver was not having an effective driving licence with badge, but allowed the driver to drive the vehicle. What is highlighted in the said contention too is the absence of a badge. MACA.1504/2012 3 The contention of the underwriter does not suggest that the driver did not have a licence at all. What was contended was that he had no badge to drive a transport vehicle and therefore he was lacking an effective driving licence with badge. These contentions can only mean that what was taken for trial was the absence of a badge and not a licence.
4.What next, and the last, is whether the tribunal was right in permitting the underwriter to recover the amount from the owner of the vehicle. The reason why such a permission was granted was absence of a badge. The position of law has been concluded by a full bench of this court in National Insurance Company Ltd v. Jisha K.P. (2015 (1) KHC 29). The full bench holds to the effect that absence of badge does not straight off go to the conclusion that there was violation of any policy condition. It is also held that the insurer who takes up such a contention should establish that the absence of MACA.1504/2012 4 badge contributed to the accident. The insurer in the present case did not adduce any evidence, oral or documentary. The insurer failed to prove that the absence of the badge in any manner contributed to the cause of accident. The appeal is only to be allowed.
5.The appeal is allowed. The impugned award is set aside to the extent it permits the insurer to recover the amount from the owner of the vehicle. The award of the tribunal shall be honoured by the underwriter.
Sd/-
A.M.BABU Judge Mrcs/16.2.2018 /True copy/ Sd/- P.S.To Judge