Kerala High Court
The Branch Manager, New India ... vs Mathew on 1 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
MACA NO. 3007 OF 2017
AGAINST THE AWARD DATED 28.02.2017 IN OPMV 774/2011 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA
APPELLANT/3RD RESPONDENT IN O.P(MV) NO.774/2011
THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY
LTD.
CHANGANASSERY BRANCH, REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADV SRI.LAL GEORGE
RESPONDENTS:RESPONDENTS 1 & 2 IN O.P(MV).774/2011
1 MATHEW
S/O.CHANDY @ RAJAN, THALIKALLUNAKAL HOUSE,
CHENGARA JUNCTION, KUMBALAMPOYKARA VILLAGE,
VADASSERIKKARA VILLAGE, RANNI TALUK,
PATHANAMTHITTA DISTRICT-689645.
2 RAJU K. THOMAS
MANAGING DIRECTOR, WIM ROCK GRANITE PVT. LTD.,PB
NO.5, VADASSERIKKARA (PO), RANNI, PATHANAMTHITTA
DISTRICT-689645.
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.CHERIAN GEE VARGHESE
SRI.P.HARIDAS
SRI.RENJI GEORGE CHERIAN
SRI.P.C.SHIJIN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 01.07.2021, THE COURT ON 14.07.2021 DELIVERED THE
FOLLOWING:
2
"C.R"
A.BADHARUDEEN, J.
--------------------------
M.A.C.A No.3007 of 2017-A
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Dated this the 14th day of July, 2021
JUDGMENT
The 3rd respondent in O.P(MV) No.774 of 2011 on the file of the
Motor Accidents Claims Tribunal, Mavelikkara is the appellant herein.
Other respondents and the petitioners are the respondents in this appeal.
The challenge in this appeal is refusal of pay and recovery right claimed by
the insurer from the insured on the ground that the driver of the offending
vehicle does not have badge at the time of the accident.
2. Brief facts of the case :
On 24.08.2009 at about 4.00 pm, while the deceased was pushing the
bicycle by the side of the road, and when he reached at the spot of accident,
the offending vehicle No. KL 3R 8284 driven by the 1st respondent in a rash
and negligent manner hit the deceased and as a result he sustained serious
injuries and he succumbed to his injuries. The case of the petitioners is that
the accident happened solely due to the rash and negligent act of the 1st
respondent driver, who is primarily liable and the 2nd respondent, who is the
owner, is vicariously liable for the act of the 1st respondent. The 3rd
respondent is the insurer, who is liable to indemnify the second respondent.
The respondents are jointly and severally liable. The petitioners claimed
total compensation of Rs.14,89,000/-.
3. As against the claim of Rs.14,89,000/-, the Tribunal granted a
total compensation of Rs.4,72,500/-. It is submitted by the learned counsel
for the insurance company that the driver of the vehicle, who is the 1 st
respondent, did not possess authorisation (badge) at the time of the accident
and therefore there is violation in policy conditions. Therefore, the
company is entitled to get recovery of the amount from the insured.
4. Ext.B1 is the copy of the policy produced from the side of the
insurance company. On perusal of the same, the gross vehicle weight is
shown as 16200 k.g. If the ratio of the ruling is applied to the facts of the
case, no doubt, the driver of the trailer involved in the accident must
possess the authorisation (badge) to drive the transport vehicle involved in
the accident and absence of the same is a fundamental breach.
5. The learned counsel for the insured, though appeared before
this Court, the insured failed to produce a valid badge during the period of
accident and he did not produce the badge even after the Tribunal directed
to produce the same as per order in I.A.No.1582 of 2016. Later the learned
counsel for the insured placed argument note contending that the purpose of
authorisation to drive a transport vehicle is conversant with the duties and
responsibilities of a driver of the transport vehice and the same has
nothing to do with the driving proficiency and infraction of the statutory
requirement to have an authorisation as held in Paul v Chandran [2013 (4)
KLT Suppl.110 (Ker.)]. Relying on the decision reported in National
Insurance Company Ltd. v. Jisha.K.P and others reported in 2015(1)
KHC 29 it is argued further that mere technical violation like absence of a
badge by the driver of a transport vehicle is not sufficient to exonerate the
insurance company from liability. The decision reported in National
Insurance Co. Ltd. v. Swaran Singh [2004 KHC 314] also is highlighted to
canvass the point that even where the insurer is able to prove breach on the
part of the insured concerning the policy conditions regarding holding of a
valid licence by the driver of qualification to drive during the relevant
period, the insurer would not be allowed to avoid its liability towards the
insured unless the said breaches of the conditions of driving licence is so
fundamental as are found to have contributed to the cause of the accident.
The decision reported in New India Assurance Co. Ltd. v. Balakrishnan
and Others [2011(4) KHC 203] is also highlighted in this regard. I have
gone through a Full Bench decision cited by the learned counsel for the
appellant/3rd respondent reported in Shaji v. Pradeesh [2018 (2) KLT 136
(F.B)] wherein National Insurance Co. Ltd. v. Jisha [2015 (1) KLT 1
(F.B)] and Mukund Dewangan v. Oriental Insurance Company Limited
[AIR 2017 SC 3668] were discussed and finally held in para.7 as under:
"However, the Apex Court having evauated the entire law on the
subject in Mukund Dewangan (supra) has held that light motor vehicle as
defined in S.2(21) of the Act would include a transport vehicle as per weight
prescribed in S.2(21) read with Sections 2(15) and 2(48). It was further held
that a transport vehicle and omnibus, gross vehicle weight of either of which
does not exceed 7500 kg. would be a light motor vehicle and also a motor car
or tractor or a road roller, `unladen weight' of which does not exceed 7500 k.g
and holder of a driving licence to drive class of "light motor vehicle" as
provided in S.10(2)(d) is competent to drive a transport vehicle or omnibus,
gross vehicle weight of which does not exceed 7500 k.g. or a motor car or
tractor or road roller, the "unladen weight" of which does not exceed 7500
k.g. Therefore, no separate endorsement on the licence is required to drive a
transport vehicle of light motor vehicle class."
It is submitted by the learned counsel for the insured that even the ratio of
Mukund Dewangan v. Oriental Insurance Company Limited (supra) is
followed, there is no need of further endorsement to drive a light transport
motor vehicle. However, it is conceded that vehicles having weight less
than 7500 kg alone would come under the said category of vehicles.
According to the insured, though a vehicle having weight more than 7500
kg. requires badge, no such contention was raised and no evidence was
adduced in this regard. While addressing the argument advanced, going by
the ratio of the ruling Mukund Dewangan v. Oriental Insurance Company
Limited (supra), no separate endorsement on the licence (badge) is required
to drive a transport vehicle of light motor category, if its weight does not
exceed 7500 kg. That is to say, a badge is required to drive a transport
vehicle having `unladen weight ' beyond 7500 kg. Therefore, I am inclined
to modify the award for the purpose of granting recovery right to the
insurance company.
6. In view of the matter, the contention raised by the learned
counsel for the insured that no contention was raised and no evidence
adduced to prove the weight of the vehicle could not sustain as it could be
noticed that fundamental breach was pleaded in the written statement filed
by the company and Ext.B1 policy showing the weight of the vehicle also
was produced to prove the same. Thus it has to be held that the
Tribunal went wrong in disallowing the prayer for recovery of the amount
from the insured after depositing the same by the company.
In the result, this Appeal is allowed, thereby it is ordered that the
appellant insurance company is entited to recover Rs.4,72,500/- (Rupees
Four lakhs seventy two thousand and five hundred only) with interest from
the insured, after depositing the same before the Tribunal as directed by the
Tribunal.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
