Kerala High Court
Thomas E.P vs Paulosekutty K.A on 28 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 2164 OF 2013
THE AWARD DATED 01.05.2013 IN OPMV NO.264 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANTS/PETITIONERS:
1 THOMAS E.P.
S/O PHILIPOSE, RESIDING AT EDACHERIPARAYIL HOUSE, VELIYANADU
KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY
2 ANILA THOMAS
D/O THOMAS, RESIDING AT EDACHERIPARAYIL HOUSE, VELIYANADU
KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY
3 APPU THOMAS
S/O THOMAS, RESIDING AT EDACHERIPARAYIL HOUSE, VELIYANADU
KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY
4 MARIYA
W/O THEVAN, RESIDING AT MOOLELPANATHIL HOUS,E KAIPATTOOR,
OLIPURAM, EDAKATTUVAYAL, MULANTHURUTHY
BY ADV SMT.ANEY PAUL
RESPONDENTS/RESPONDENTS:
1 PAULOSEKUTTY K.A.
S/O ABRAAM K.V KARIKUNNATHU HOUSE, MARITAZHAM P.O,
KANJIRAMATTOM 682315
2 MANOJ P.R.
S/O RAJAPPAN, PAYYATTIPILLIL HOUSE, PAMPAKUDA NEAR
PAMPAKUDA GOVT. SCHOOL, MAYMURY VILLAGE, MUVATTUPUZHA
TALUK, PIN-686 661
3 THE MANAGER
RELIANCE INSURANCE COMPANY LIMITED SL/3599, FOURTH
FLOOR,ELEZEBETH ALAXANDER MEMORIAL BUILDING, SHANMUGAM
ROAD, MARINE DIRVE, KOCHI 682031
BY ADV SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) FOR R1
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
2
OTHER PRESENT:
R3-SMT.LATHA
SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2211/2013, 3299/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 2211 OF 2013
THE AWARD DATED 01.05.2013 IN OPMV NO.263 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/APPELLANT:
THOMAS E.P.
S/O.PHILIPOSE, RESIDING AT EDACHERIPARAYIL HOUSE,
VELIYANADU KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY.
BY ADV SMT.ANEY PAUL
RESPONDENTS/RESPONDENTS:
1 PAULOSEKUTTY K.A.
S/O.ABRAHAM K.V., KARIKUNNATHU HOUSE, MARITHAZHAM P.O.,
KANJIRAMATTOM-682315.
2 MANOJ P.R.
S/O.RAJAPPAN, PAYYATTIPILLIL HOUSE, PAMPAKUDA NEAR
PAMPAKUDA GOVT.SCHOOL, MAYMURY VILLAGE, MUVATTUPUZHA
TALUK, PIN-686661.
3 THE MANAGER
RELIANCE INSURANCE COMPANY LIMITED XL/3599, FOURTH
FLOOR, ELEZEBETH ALAXANDER MEMORIAL BUILDING, SHANMUGAM
ROAD, MARINE DRIVE, KOCHI-682031.
BY ADVS.
SRI.ALEXY AUGUSTINE
SRI.GEORGE CHERIAN SR.
SMT.LATHA SUSAN CHERIAN
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
4
SRI.T.K.SHAJAHAN
SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2164/2013 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 3299 OF 2014
AGAINST THE AWARD DATED 01.05.2013 IN OPMV NO.264 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/1ST RESPONDENT:
PAULOSEKUTTY
S/O.ABRAHAM, KARIKUNNATHU HOUSE, MARITHAZHAM
POST,KANJIRAMATTAOM, PIN - 682 315, ERNAKULAM DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENTS/PETITIONERS & RESPONDENTS 2 AND 3:
1 THOMAS E.P
S/O.PHILIPOSE, EDACHERIPARAYIL HOUSE,
VELIYANADKARA, EDAKKATTUVAYAL VILLAGE,
MULANTHURUTHY,ERNAKULAM DISTRICT - 682 313.
2 ANILA THOMAS
D/O.THOMAS, EDACHERIPARAYIL HOUSE, VELIYANAD
KARA,EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY,
ERNAKULAM DISTRICT - 682 313.
3 APPU THOMAS
S/O.THOMAS, EDACHERIPARAYIL HOUSE, VELIYANAD
KARA,EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY,
ERNAKULAM DISTRICT - 682 313.
4 MARIYA
W/O.THEVAN, RESIDING AT MOOLELPANATHIL
HOUSE,KAIPATTOOR, OLIPURAM,
EDAKKATTUVAYAL,MULANTHURUTHY, PIN - 682 313.
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
6
5 MANOJ P.R.
S/O.RAJAPPAN, PAYATTIPILLIL HOUSE,PAMPAKUDA POST,
NEAR PAMPAKUDA GOVERNMENT SCHOOL, MAYMURY
VILLAGE, MUVATTUPUZHA TALUK, PIN-682313.
6 THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY
LIMITED,XL/3599, FOURTH FLOOR, ELIZABETH
ALEXANDER MEMORIAL BUILDING, SHANMUGHAM ROAD,
MARINE DRIVE, COCHIN - 682 031.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2164/2013 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 3300 OF 2014
AGAINST THE AWARD DATED 01.05.2013 IN OPMV NO.263 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/1ST RESPONDENT:
PAULOSEKUTTY K.A
AGED 43 YEARS
S/O.ABRAHAM, KARIKUNNATHU HOUSE, MARITHAZHAM POST,
KANJIRAMATTOM, 682 315, ERNAKULAM DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENTS/PETITIONER & RESPONDENTS 2 AND 3:
1 THOMAS E.P
S/O.PHILIPOSE, EDACHERIPARAYIL HOUSE, VELIYANAD KARA,
EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY, ERNAKULAM
DISTRICT. 682 315.
2 MANOJ P.R
S/O.RAJAPPAN, PAYATTIPILLIL HOUSE, PAMPAKUDA POST,
NEAR PAMPAKUDA GOVERNMENT SCHOOL, MAYMURY VILLAGE,
MUVATTUPUZHA TALUK 682 315.
3 THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY LIMITED, XL/3599,
FOURTH FLOOR, ELIZABETH ALEXANDER MEMORIAL BUILDING,
SHANMUGHAM ROAD, MARINE DRIVE, COCHIN 682 031.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2164/2013 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
8
SOPHY THOMAS, J.
=====================
MACA No. 2164 & 2211 of 2013,
MACA No. 3299 & 3300 of 2014
========================
JUDGMENT
Dated this the 28th day of June, 2024 These appeals are directed against the common judgment in OP (MV) Nos. 264 & 263 of 2007 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha.
2. MACA No. 2164 of 2013 is filed by the claimants in OP (MV) 264 of 2007, and MACA 2211 of 2013 is filed by the claimant in OP (MV) 263 of 2007. They are impugning the common award on the ground of inadequacy of compensation. MACA No. 3299 of 2014 and 3300 of 2014 are filed by the 1st respondent/owner against the recovery ordered against him.
MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 9
3. On 28.09.2006 while the claimant in OP (MV) No. 263/2007, Sri. Thomas and his wife were travelling in a motorcycle through Thottapady - Vattapara Public Road, KL-39/765 JCB driven by the 2nd respondent in a rash and negligent manner, dashed against the motorcycle, and both of them fell down on the road. The pillion rider, Smt. Leela sustained very serious injuries to which she succumbed on her way to hospital. Her husband Mr. Thomas also sustained serious injuries, including compound depressed fracture of right temporal bone with underlying contusion, cerebral oedema etc.
4. The legal heirs of deceased Leela filed OP (MV) No. 264 of 2007, and husband of the deceased Sri. Thomas who sustained injuries in the accident, preferred OP (MV) No. 263 of 2007.
5. In OP (MV) No. 264 of 2007, learned Tribunal awarded Rs.4,97,800/- against the claim of Rs.7,00,000/-, and in OP (MV) No. 263/2007, the Tribunal awarded Rs.3,68,700/- against the claim of Rs.5,00,000/-. Alleging that the compensation awarded by the Tribunal was inadequate in both the claim petitions, MACA Nos. 2164 of 2013 and 2211 of 2013 were preferred by the claimants. MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 10
6. The 1st respondent was the owner of the offending JCB, 2nd respondent was its driver, and the 3rd respondent was its insurer. All of them appeared before the Tribunal, and contested the case. The 3rd respondent insurer contended that the 2nd respondent driver of the JCB had no valid driving licence as on the date of accident, and hence there was violation of the policy conditions. Learned Tribunal, finding that the driving licence possessed by the 2nd respondent as on the date of the accident was a fake one, while directing the insurer to deposit the compensation amount initially, permitted them to recover the same from the owner of the offending vehicle, as he permitted the 2nd respondent, to drive the offending JCB without valid driving licence. Challenging the recovery ordered against him, the owner has preferred MACA Nos. 3299 of 2014 and 3300 of 2014.
7. In the appeal, all the parties entered appearance through their respective counsel.
8. Learned counsel for the appellants in MACA Nos. 2164 of 2013 and 2211 of 2013 would submit that the compensation awarded by the Tribunal was not the just compensation, and so it has to be enhanced. Learned counsel for the appellant/owner in MACA 3299 of MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 11 2014, and 3300 of 2014 would contend that he had verified Ext.B10 driving licence of the 2nd respondent issued from Manipur and he was satisfied with his driving skills, and he had no information that the driving licence possessed by the 2nd respondent was a fake one. So, if at all, it is found that Ext.B10 driving licence was a fake one, he cannot be mulcted with any liability to restitute the compensation paid by the insurance company to the claimants. Learned counsel for the insurer would contend that the compensation awarded is just and reasonable and hence no enhancement is warranted, and the recovery ordered against the owner is to be upheld.
9. Now this Court is called upon to answer whether there is any illegality or impropriety in the impugned award warranting interference by this Court.
10. Heard learned counsel for the appellants, and learned counsel for the 3rd respondent insurer.
11. MACA No. 2164 of 2013 and MACA No. 2211 of 2013 can be taken together for the purpose of convenience.
12. MACA No. 2164 of 2013 is filed by the legal heirs of deceased Leela who was a 43 year old coolie worker. Learned MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 12 counsel for the appellants would submit that, though she was earning monthly income of Rs.5000/-, learned Tribunal fixed her notional income @ Rs.3000/- only which is on the lower side. Based on the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], learned counsel for the appellant would submit that, in the year 2006, she was eligible to get her notional income fixed @ Rs.5,500/- per month. Accepting that argument, but on finding that, the claim of monthly income of the deceased in the original claim petition was only Rs.5,000/-, this Court is inclined to fix her notional income @ Rs.5000/- per month. Since she was self employed, and below 50 years, 25% addition could be granted towards future prospects. So, her monthly income could be taken as Rs.6,250/- (5000 + 25%). Since she was having four dependants, ¼ is liable to be deducted towards her personal expenses. If so, her monthly income is to be taken as Rs.4,688/- for assessing compensation for loss of dependency. The multiplier applicable is 14 as she was aged only 43. So, the dependency compensation could be assessed as Rs.7,87,584/- (4,688 x 12 x 14). On deducting Rs.4,36,800/- already MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 13 awarded by the Tribunal, the appellants are entitled to get Rs.3,50,784/- towards enhanced compensation under the head of loss of dependency.
13. Towards loss of consortium, learned Tribunal awarded Rs.15,000/- and for loss of love and affection awarded Rs.30,000/-. Based on National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680], the appellants who are the husband, children and mother of the deceased are entitled to get Rs.40,000/- each, which will come to Rs.1,60,000/- in total. After deducting Rs. 45,000/- (Rs.30,000 + Rs.15,000) awarded for loss of consortium and loss of love and affection, the appellants are entitled to get Rs.1,15,000/- as enhanced compensation under the head loss of consortium.
14. Towards funeral expenses, learned Tribunal awarded only Rs.5,000/-. Based on Pranay Sethi's case, the appellants are eligible to get Rs.15,000/-. So they will get the balance Rs.10,000/- as enhanced compensation under the head funeral expenses.
15. No amount was seen awarded by the Tribunal towards loss of estate. Based on Pranay Sethi's case, the appellants are MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 14 entitled to get Rs.15,000/- towards loss of estate, and this Court is inclined to award that amount towards loss of estate.
16. So the appellants in MACA No. 2164 of 2013 are entitled to get enhanced compensation of Rs.4,90,784/-. But Rs.10,000/- awarded by the Tribunal towards pain and suffering is liable to be deducted as the deceased had an instantaneous death. So, after deducting that amount, the appellants will get Rs.4,80,784/- as enhanced compensation.
17. The compensation awarded in MACA No. 2164 of 2013 is given in the table below:-
Head of claim Amount Amount Amount Difference to be awarded by awarded in deducted drawn as the Tribunal appeal in appeal enhanced compensation loss of dependency 4,36,800/- 7,87,584/- .... 3,50,784/-
loss of consortium 15,000/-
1,60,000/- ..... 1,15,000/-
love and affection 30,000/-
funeral expenses 5,000/- 15,000/- ..... 10,000/-
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
15
loss of estate ..... 15,000/- ...... 15,000/-
pain and suffering 10,000/- ...... 10,000/- 10,000/-
10,000/- 4,90,784/-
Total
The enhancement entitled is Rs. 4,80,784/- (4,90,784 - 10,000)
18. In MACA 2211 of 2013, learned counsel for the appellant would submit that the injured Thomas was a 48-year-old coolie worker earning monthly income of Rs.5,000/-. But learned Tribunal fixed his notional income at Rs.3,000/- which is on the lower side. Relying on Ramachandrappa's case cited above, the appellant was eligible to get his income @ Rs.5,500/- per month. But his claim was only Rs.5,000/- per month. Accepting the argument of the appellant, this Court is inclined to fix his notional income Rs.5,000/- per month.
19. Learned Tribunal assessed his loss of earnings for a period of 9 months. We have fixed his notional income @ Rs.5,000/-. So, for 9 months, he will get Rs.45,000/- towards loss of earnings. After deducting Rs. 27,000/- already awarded by the Tribunal, he will get the balance amount of Rs.18,000/- as enhanced compensation towards loss of earnings.
MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 16
20. Towards pain and suffering, learned Tribunal awarded only Rs.25,000/- against his claim of Rs.50,000/-. The appellant had suffered compound depressed fracture of right temporal bone with underlying contusion and cerebral oedema. There was fracture of femur/lateral condyle and fracture and dislocation of distal phalanx of little finger. He was hospitalized for 45 days. He was disoriented and was not able to live an independent life, as he had severe memory loss. Considering these facts, this Court is inclined to award Rs.10,000/- more towards pain and suffering.
21. Towards loss of amenities, learned Tribunal awarded only Rs.20,000/- against his claim of Rs.50,000/-. As he was disoriented with memory loss, this Court is inclined to award Rs.5,000/- more towards loss of amenities.
22. Towards bystander expenses, learned Tribunal awarded only Rs.4,500/-. The appellant was hospitalised for 45 days, and even after discharge, he might have been continuing with the assistance of a bystander, as he had disorientation and memory loss. So this Court is inclined to award bystander expenses for a period of 60 days @ 300/- per day which will come to Rs.18,000/- in total. After deducting MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 17 Rs.4,500/- awarded by the Tribunal, he is eligible to get the balance amount of Rs.13,500/-.
23. Towards extra nourishment, learned Tribunal awarded only Rs.5,000/-. Considering the nature of injuries, period of hospitalization, and also the disability suffered due to the accident, this Court is inclined to award Rs.2500/- more under the head extra nourishment.
24. The appellant had suffered 29% disability due to the injuries suffered in the accident. Since he was aged 48, the multiplier applicable was 13. On assessing compensation for disability, taking his notional income as Rs.5,000/-, he is entitled to get Rs.2,26,200/-. After deducting Rs.1,35,720/- awarded by the Tribunal, he is entitled to get Rs. 90,480/- as enhanced compensation under the head disability.
25. Learned Tribunal, even though awarded Rs.3,98,544/-, in OP (MV) 263 of 2007, finding that the appellant/claimant was not having a driving licence to ride the motorcycle, reduced the compensation amount by 7.5%, and awarded only Rs.3,68,653/-. It is pertinent to note that there was no finding to the effect that there was MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 18 contributory negligence from the part of the appellant/claimant. If he rode his motorcycle without valid driving licence, he could have been prosecuted for the same by the authorities concerned. Only because of the fact that the claimant was not having valid driving licence at the time of accident, unless there was a finding to the effect that, there was contributory/composite negligence from the part of the appellant/claimant, the Tribunal could not have reduced the award amount by 7.5%. Even if the appellant was not having a valid driving licence, we cannot jump into a conclusion, that he was negligent in riding the motorcycle, and he also contributed towards the accident. So, reduction of the award amount by 7.5% could not be justified. The total compensation amount was Rs.3,98,554/- and its 7.5% comes to Rs.29,890/-. The appellant is entitled to get that amount also. Including that amount, the total enhanced compensation will come to Rs.1,69,370/- (1,39,480 + 29,890).
26. The enhancement allowed in MACA No. 2211 of 2013 is given in the table below:-
MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 19 Head of claim Amount Amount Difference to be awarded by awarded in drawn as the Tribunal appeal enhanced compensation loss of earning 27,000/- 45,000/- 18,000/- pain and suffering 25,000/- 35,000/- 10,000/- loss of amenities 20,000/- 25,000/- 5,000/- bystander expense 4,500/- 18,000/- 13,500/-
extra nourishment 5,000/- 7,500/- 2,500/-
disability 1,35,720/- 2,26,200/- 90,480/-
7.5% deducted by 29,890/- 29,890/-
the Tribunal
Total 1,69,370/-
27. The policy of the offending vehicle as on the date of the accident is admitted by the 3rd respondent. So, the 3rd respondent is primarily liable to pay the enhanced compensation amount to the MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 20 appellants in MACA No.2164 of 2013 as well as in MACA No.2211 of 2013.
28. Finding that, the 2nd respondent had no valid driving licence at the time of accident, learned Tribunal while directing the 3rd respondent insurance company to deposit the award amount, permitted them to recover the same from the 1st respondent/owner.
Against that finding, the 1st respondent/owner has preferred MACA Nos.3299 of 2014 and 3300 of 2014. For the purpose of convenience, these two appeals can be considered together.
29. In both these appeals, the appellant/owner would contend that the 2nd respondent driver was having valid driving licence at the time of accident, and Ext.B10 is his driving licence. So, according to him there was no violation of the policy conditions, so as to order recovery against him.
30. Learned counsel for the 3rd respondent insurer would draw attention of this Court to paragraph 11 of the impugned award, in which the Tribunal has found that Ext.B10 was not a genuine licence issued by competent authorities. Ext.B4 was the driving licence particulars of the 2nd respondent, produced by the insurer. As per the MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 21 entries in that document, the 2nd respondent was having LMV licence since 08.11.2002 valid up to 07.11.2022. RW1, the Joint RTO of Perumbavoor, deposed before the Tribunal, that the 2nd respondent obtained a licence to drive an excavator with effect from 16.10.2006 only, i.e. after the date of accident. Subsequently, that licence was cancelled on 23.06.2010 as it was a fake one. Learned Tribunal raised a genuine doubt that, if the 2nd respondent was having Ext.B10 licence for driving an excavator, which was valid till 24.10.2010, what prompted him to apply for another licence in the year 2006, that too after the accident. So, learned Tribunal came to the conclusion that Ext.B10 licence was not a genuine one.
31. In the appeal, the 2nd respondent/driver entered appearance through Adv. Sri.T.K.Shajahan. But he has not come forward to say about the genuineness of Ext.B10 licence. Whereas the owner has produced photocopies of two documents as Annexures A2 and A3 to say that Ext.B10 was a valid licence. Since those documents are photocopies, prima facie it is not liable to be accepted in evidence. Annexure A3 document is a 'No Objection Certificate' seen to have been issued by Govt. of Manipur, but it does MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 22 not bear any date. Learned counsel for the 3rd respondent/insurer vehemently opposed those documents. Since the original of those documents are not seen produced, and the 2nd respondent driver has not come forward to prove the genuineness of Ext.B10 licence, this Court is not inclined to accept Annexures A2 and A3 documents.
32. Learned counsel for the appellants/owner would contend that, when he appointed the 2nd respondent as the driver of his JCB, he had verified Annexure B10 driving licence issued from Manipur, and he was satisfied with the driving skills of the 2nd respondent. Bonafide believing that, the driving licence of the 2nd respondent was a valid one, he did not make any further enquiries as to the genuineness of Ext.B10 document.
33. In Aisha v. Xavier 2022 (5) KLT 494, this Court held that "when the owner of the offending vehicle, who bonafide believed the driving licence of the driver as a genuine one, he is not liable to restitute the compensation amount paid by the insurance company", and there would be no breach of S.150 (2)(a)(ii) of the amended Act 32 of 2019. Since the owner was not aware of the fact that the driving MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 23 licence was a fake one, he cannot be mulcted with the liability to restitute the insurance company.
34. In Rishi Pal Singh V. New India Assurance Co. Ltd. & Others 2022 (4) KLT Online 1190 = 2022 ACJ 1868, the Apex Court held that "the owner of the vehicle is expected to verify the driving skills of the driver before appointing him, and once he is satisfied that the driver is competent to drive, he is not expected to verify the genuineness of his driving licence. The owner has no means to verify the genuineness of the driving licence produced before him, provided the owner finds the driver competent to drive the vehicle. When an owner hires a driver, and the driver produces a driving licence, which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. Insurance companies cannot expect owners to make enquires with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. So, when the owner is satisfied that the driver has a licence and he is driving competently, there would be no breach of S.149 (2)(a)(ii) of the Motor Vehicles Act. The insurance company then could not be absolved from their liability to MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 24 compensate the victim. Ultimately, if it is found that the licence was fake, the insurance company will continue to remain liable, unless they prove that the owner-insurer was aware or had noticed that the licence was fake and still permitting that person to drive. When the owner is not liable to restitute the insurance company, for the reason that he was not aware of the fact that the licence of the driver was a fake one, then, the liability will be shifted to the shoulders of the driver due to whose negligence, the accident occurred".
35. Regarding privity of contract between the insurer and the driver of the offending vehicle, in Oriental Insurance Co. Ltd Vs. Sivan 2014 (1) KLT 1, a Division Bench of this Court held that "when the driver of a vehicle commits a fraudulent and criminal act by driving the vehicle with a forged licence, without the knowledge of the owner, such driver cannot escape the liability towards the insurance company on account of breach of contract. The driver is not a stranger to the contract of insurance between the insurance company, and the owner of the vehicle and there is a quasi-contract between the driver and the insurer. The person liable in the first instance is the driver himself. The owner becomes liable for the MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 25 negligence on the part of the driver, by applying the principles of vicarious liability in an action for tort. The insurance company becomes liable to indemnify the owner of the vehicle, because of the contract of insurance entered into between the owner of the vehicle and the insurance company. In fact, ultimately what the insurance company takes upon themselves, by virtue of the contract of insurance, is primarily the liability of the driver, for paying compensation for his negligent act to the party, who suffered because of his negligence. Therefore, it cannot be said that the driver is a stranger to the contract of insurance between the insurance company and the owner of the vehicle".
36. Since the owner was not aware of the fact that the driving licence produced by the driver was a fake one, he is not liable to compensate the victim. So the insurer cannot proceed against the owner. But since the accident occurred due to negligence of the driver and he has not come forward to prove the genuineness of Ext.B10 licence with concrete evidence, he is the person liable to compensate the victim. Since the offending vehicle was duly insured with the 3rd respondent insurer, as far as an innocent third party is MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 26 concerned, primarily the insurer has to compensate him and thereafter they can recover that amount from the driver, as there was quasi-contract between the driver and the insurer. So the 3rd respondent insurer has to compensate the appellants in MACA No.2164 of 2013 and MACA No.2211 of 2013. Therefore, they can recover that amount from the 2nd respondent/driver of the offending JCB.
37. Hence, MACA No. 3299 of 2014 and MACA No. 3300 of 2014 filed by the owner, are liable to be allowed, as he had no knowledge that the driving licence of the 2nd respondent was a fake one, and he appointed the 2nd respondent as his driver, on verifying his driving skills, and bonafide believing that Ext.B10 licence produced by him was a genuine one.
38. In the result, MACA No. 2164 of 2013 and MACA No. 2211 of 2013 are allowed granting enhanced compensation, and MACA No. 3299 of 2014 and MACA No. 3300 of 2014 are allowed, setting aside the recovery ordered against the appellant/owner.
39. In MACA No.2164 of 2013, the 3rd respondent insurer shall deposit enhanced compensation of Rs.4,80,784/- with 7% interest per MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 27 annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Moovattupuzha within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to appellants 1 to 4 in the ratio of 50:20:20:10, after deducting the liabilities if any, towards tax, balance court fee, and legal benefit fund.
40. In MACA No.2211 of 2013, the 3rd respondent insurer is directed to deposit enhanced compensation of Rs.1,69,370/- with 7% interest per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Moovattupuzha within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the liabilities if any, towards tax, balance court fee, and legal benefit fund.
41. On making such deposits as directed in paragraphs 39 and 40, the 3rd respondent insurer is at liberty to recover that amount from the 2nd respondent driver, and his assets.
The appeals stand allowed to the extent as above, and no order as to costs.
MACA No. 2164 & 2211 of 2013 and MACA No. 3299 & 3300 of 2014 28 Sd/-
SOPHY THOMAS JUDGE RMV