Muhammedkutty vs Muhammedkutty
2021 Latest Caselaw 10696 Ker

MACA.No.623 OF 2014

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         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR.JUSTICE C.S.DIAS

 TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943

                      MACA.No.623 OF 2014

 AGAINST THE AWARD IN OP(MV) 890/2006 DATED 29-10-2013 OF
        MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM


APPELLANT/2ND RESPONDENT:

           MUHAMMEDKUTTY
           AGED 52 YEARS
           S/O. ENDEENKUTTY, KALLINGAL HOUSE, AMAYOOR
           P.O., PATTAMBI, PALAKKAD DISTRICT.

           BY ADV. SRI.K.A.SALIL NARAYANAN

RESPONDENT/3RD RESPONDENT:

           THE NEW INDIA ASSURANCE COMPANY LTD
           BRANCH OFFICER, KOZHIKODE-673001 (THE INSURER
           OF KL-9P-4546, BUS).

           R1 BY ADV. SMT.P.K.SANTHAMMA

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 30-03-2021, THE COURT ON THE SAME DELIVERED THE
FOLLOWING:
 MACA.No.623 OF 2014

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                         JUDGMENT

The appellant was the 2nd respondent in O.P.

(MV) No.890/2006 on the file of the Motor Accidents

Claims Tribunal, Ottapalam. The respondent in the

appeal was the 3rd respondent in the claim petition.

The parties are, for the sake of convenience, referred

to as per their status in the claim petition.

2. The facts, in brief, for the determination of

the appeal, are: on 4.4.2006 while the petitioner was

riding a motorcycle bearing Reg.No.KL9K-1651

from Karimbully to Panayoor through the Pattambi -

Ottappalam Public Road, he was hit by a bus bearing

Reg. No.KL9P 4546 (offending vehicle)driven by the

1st respondent. The offending vehicle was owned by

the 2nd respondent and insured with the 3 rd

respondent. The accident occurred solely due to the

rash and negligent driving of the offending vehicle by

the 1st respondent. Hence, the respondents are jointly

and severally liable to compensate the petitioner. MACA.No.623 OF 2014

3. The Tribunal, by award dated 29.10.2013,

allowed the claim petition by ordering the 3rd

respondent to pay the compensation to the petitioner

and recover the amount from the respondents 1 and

2.

4. Aggrieved by the impugned award, directing

the respondents 1 and 2 to reimburse the amount to

the 3rd respondent - Insurance Company, the 2nd

respondent filed MACA No.601/2011 before this

Court. This Court allowed the appeal and remitted

the matter back to the Tribunal for fresh

consideration.

5. The Tribunal, after considering the rival

contentions again by the impugned award reiterated

its earlier view by permitting the 3 rd respondent to

pay the compensation to the petitioner and recover

the amount from the respondents 1 and 2 on the

ground that the 1st respondent did not possess a valid

badge to drive the offending vehicle on the date of MACA.No.623 OF 2014

accident, so there was an infraction of policy

conditions.

6. Aggrieved by the impugned award, the 2nd

respondent - owner of the offending vehicle - is in

appeal.

7. Heard Sri.Salil Narayanan, the learned

counsel appearing for the appellant and

Smt.P.K.Santhamma,the learned counsel appearing for

the respondent.

8. The question that arises for consideration in

the appeal is whether the absence of a badge would

entitle an Insurance Company to pay and recover the

compensation from the insured.

9. The above question poised is no longer re-

integra in view of the categoric declaration of law by

this Court in National Insurance Co. Ltd. v. Jisha

K.P and others [2015 (1) KHC 29], Shaji v.

Pradeesh and Others [ 2015 KHC 7077] and Joseph MACA.No.623 OF 2014

M.M. v. Yoonus and Others [ 2019 (5) KHC 132].

10. In Jisha K.P (supra), a full Bench of this

Court has succinctly held that a mere technical

violation like absence of a badge by the driver of a

transport vehicle is not sufficient to exonerate the

Insurance Company of its liability to pay compensation

to the claimant. In order to claim exoneration, the

Insurance Company will have to plead and prove the

absence of the badge was a fundamental breach

which contributed to the cause of the accident. Any ,

any technical violation of Rules cannot help the

Insurance Company.

11. In the instant case, the Insurance Company

has not pleaded or proved that the accident occurred

due to absence of badge by the 1st respondent while

driving the offending vehicle. The Tribunal arrived at

the conclusion on the ground that the 1st respondent

had a badge for the light motor vehicle valid for a

period of three years from 1.10.2002, i.e, till MACA.No.623 OF 2014

30.9.2005. The 1st respondent had renewed the

transport vehicle licence with badge only on

17.8.2006 for a period of three years. On the date of

the accident i.e. on 4.4.2006, the 1st respondent did

not possess a valid badge.

12. In light of the law laid down in the afore-

cited decisions and the absence of specific pleadings

and proof as required in Jisha K.P (supra), I am of the

definite opinion that the impugned award is erroneous

and unsustainable in law.

In the result, I allow the appeal and set aside the

impugned award in O.P (MV)890/2006 by holding that

the respondent is not entitled to recover the

compensation amount from the appellant. The parties

shall bear their respective costs.

Sd/-

C.S.DIAS Ma/30.3.2021 /True copy/ JUDGE MACA.No.623 OF 2014