K.Aravindakshan vs Sara
2021 Latest Caselaw 23564 Ker

MACA NO. 3280 OF 2015
                                  1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                        MACA NO. 3280 OF 2015
  AGAINST THE ORDER/JUDGMENT IN OPMV 32/2009 OF MOTOR ACCIDENT
                      CLAIMS TRIBUNAL ,KASARAGOD
APPELLANT/S:

          K.ARAVINDAKSHAN
          S/O.NARAYANAN NAIR, R/AT 4/288, KOTAVAYAL
          HOUSE,KUNDAMKUZHI P.O, BEDAKAM VILLAGE, KASARAGOD
          DISTRICT.

          BY ADV SRI.KODOTH SREEDHARAN



RESPONDENT/S:

    1     SARA, AGED 35 YEARS, W/O.LATE UMMER, R/AT SANTHOSH
          NAGAR,CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT-
          671 121.                          DELETED

    2     ABDUL USAMATH SHIBILI C.U.
          S/O.LATE UMMER, R/AT SANTHOSH NAGAR, CHENGALA VILLAGE,
          KASARGOD TALUK AND DISTRICT- 671 121.       DELETED

    3     FATHIMATH SHIFANA C.U.
          D/O.LATE UMMER, R/AT SANTHOSH NAGAR, CHENGALA VILLAGE,
          KASARGOD TALUK AND DISTRICT- 671 121.         DELETED

    4     MOHAMMED SHAMMAS C.U.
          AGED 16 YEARS, S/O.LATE UMMER, R/AT SANTHOSH NAGAR,
          CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT- 671
          121,MINOR REP. BY MOTHER SARA.           DELETED

    5     SURESH KUMAR M.
          S/O.E.RAJASEKHARAN, EDAPANNY HOUSE,
          P.O.KUNDAMKUZHI,BEDADKA, CHENGALA VIA, KASARAGOD
          DISTRICT - 671 123.
 MACA NO. 3280 OF 2015
                               2

    6     RAJASEKHARAN NAIR
          S/O.VASUDEVAN NAIR, NELLIYADUKKAM HOUSE,
          P.O.KUNDAMKUZHI, BEDADKA, CHENGALA VIA, KASARAGOD
          DISTRICT - 671 123.

    7     THE BRANCH MANAGER
          NEW INDIA ASSURANCE COMPANY LTD, GOKUL BUILDING,
          M.G.ROAD KASARAGOD DISTRICT - 671 121.

    8     M.C.MOHAMMED, AGED 63 YEARS, S/O.LATE C.ABDULLA, R/AT
          BELKAD HOUSE, BERKACHENGALA VILLAGE, KASARGOD TALUK
          AND DISTRICT-671 121.               DELETED

    9     ABDUL RAHIMAN, AGED 60 YEARS, S/O.LATE C.ABDULLA, R/AT
          BELKAD HOUSE, BERKA CHENGALA VILLAGE, KASARGOD TALUK
          AND DISTRICT-671 121.               DELETED

    10    MARIYAMMA, AGED 58 YEARS, D/O.LATE C.ABDULLA, W/O.LATE
          ABDUL RAHIMAN R/AT NEAR KUNNIL SCHOOL, NEW BEVINJE,
          P.O.THEKKIL FERRY, KASARGOD TALUK AND DISTRICT - 671
          123.                  DELETED

    11    AMOO, AGED 56 YEARS, S/O.LATE C.ABDULLA, R/AT BELKAD
          HOUSE, BERKA CHENGALA VILLAGE, KASARGOD TALUK AND
          DISTRICT-671 121.      DELETED

    12    NABEESA, AGED 54 YEARS, D/O.LATE C.ABDULLA,
          W/O.IBRAHIM, R/AT CHATTANCHAL THAIRE, THOTTUMBAI,
          THEKKIL VILLAGE AND POST KASARGOD TALUK AND DISTRICT -
          671 121.            DELETED

    13    C. ASHRAF, AGED 52 YEARS, S/O.LATE C.ABDULLA, R/AT
          BELKAD HOUSE, BERKA CHENGALA VILLAGE, KASARGOD TALUK
          AND DISTRICT-671 121.                DELETED

    14    AYISHA, AGED 40 YEARS, S/O.LATE C.ABDULLA, W/O.ABDUL
          RAHIMAN,R/AT ALLAMA IQUBAL NAGAR, KETTUM KALLU,
          P.O.MULIYAR, KASARAGOD TALUK AND DISTRICT - 671 123.
          DELETED

    15    C. MOIDU
          AGED 38 YEARS, S/O.LATE C.ABDULLA, R/AT INDIRA
          NAGAR,CHENGALA VILLAGE AND POST, KASARAGOD TALUK AND
          DISTRICT671 123.      DELETED
 MACA NO. 3280 OF 2015
                                    3

    16       NASSAR                               DELETED
             AGED 36 YEARS, S/O.LATE C.ABDULLA, R/AT BEVINJE,
             THEKKIL FERRY, KASARGOD TALUK AND DISTRICT - 671 123.

             RESPONDENT NOS 1 TO 4 AND 8 TO 16 ARE DELETED FROM THE
             PARTY ARRAY AT THE RISK OF TEH APPELLAT AS PER ORDER
             DATED 30.11.2021 IN IA NO.1/2021.

             BY ADVS.
             P.V.ANOOP
             P.V.KUNHIKRISHNAN
             LAL K.JOSEPH
             KKM.SHERIF




     THIS    MOTOR   ACCIDENT    CLAIMS   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 3280 OF 2015
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                          JUDGMENT

The appellant was the 3rd respondent in OP(MV) No.32/2009

on the file of the Motor Accidents Claims Tribunal, Kasaragod.

The respondents 1 to 4 in the appeal were the petitioners 1 to 4

and respondents 5 to 7 were the respondents 1, 2 and 4 before

the Tribunal. The respondents 8 to 16 in the appeal were the

supplemental respondents 5 to 13 before the Tribunal. The

parties are, for the sake of convenience, referred to as per the

status before the Tribunal.

2. The petitioners had filed the claim petition under Section

166 of the Motor Vehicles Act, 1988, claiming compensation on

account of the death of Ummer (deceased), husband of the 1 st

petitioner, father of the petitioners 2 to 4 and son of the 5 th

petitioner. Pending the proceeding, the 5th petitioner expired and

her legal representatives were impleaded as the supplemental

respondents 5 to 13. It was the case of the petitioners that, on

09.06.2008, when the deceased was returning from a mosque

near Santhosh Nager, a jeep bearing registration No.KL-14B-

1400 (jeep), driven by the 1st respondent in a rash and negligent

manner, hit the deceased. The deceased sustained fatal injuries MACA NO. 3280 OF 2015

and lost his life instantaneously. The deceased was a PWD

contractor and earning a monthly income of Rs.15,000/-. The

petitioners were the dependents of the deceased. The

respondents 2 and 3 were the owners of the jeep and the 4th

respondent was the insurer of the jeep. Hence, the petitioners

claimed compensation from the respondents.

3. The respondents 1 to 3 did not contest the proceedings

and were set ex-parte.

4. The 4th respondent - insurer had filed a written statement

admitting that the jeep was covered by an 'Act Only' policy. But,

it was contended that the 1st respondent did not hold an effective

valid license and badge to drive the jeep. Therefore, the 4 th

respondent was not liable to indemnify the 2 nd respondent - the

registered owner of the jeep. Hence, the 4 th respondent may be

exonerated.

5. The respondents 5 to 13 - supplemental respondents -

legal representatives of the deceased 5th petitioner also did not

contest the proceedings and were set ex-parte.

6. The Tribunal, after analyzing the pleadings and the

materials on record, allowed the claim petition by permitting the MACA NO. 3280 OF 2015

petitioners and respondents 5 to 13 to recover an amount of

Rs.19,10,000/- with interest and cost from the 4 th respondent,

but the 4th respondent was granted the right to recover the

compensation amount from the 3rd respondent, on the ground

that the 1st respondent did not hold an effective driving license

and a badge to drive the jeep.

7. Aggrieved by the direction of the Tribunal, permitting the

4th respondent to recover compensation amount from the 3rd

respondent, the 3rd respondent is in appeal.

8. Heard; Sri.Kodoth Sreedharan, the learned counsel

appearing for the appellant/3rd respondent, Sri. P.V. Anoop, the

learned counsel appearing for the respondents 5 and 6 and Sri.

Lal K. Jospeh, the learned counsel appearing for the 7 th

respondent/4th respondent-insurer.

9. The question that arises for consideration in the appeal is

whether the direction of the Tribunal permitting the 7 th

respondent insurer (4th respondent before the Tribunal) to

recover the compensation from the appellant is sustainable in

law or not.

10. The definite case of the 7th respondent in the written MACA NO. 3280 OF 2015

statement filed before the Tribunal was that the 5 th

respondent/1st respondent driver did not hold a valid badge to

drive the jeep. The 7th respondent insurer had produced the

registration particulars of the jeep, which was marked as Ext.B3.

The registration particulars show that the jeep had a gross

weight of 1770 kilograms (kgs) and an unladen weight of 1230

kgs.

11. In Mukund Dewangon vs. Oriental Insurance

Company Limited [2017 93) KLT 1000 (SC)], the Honourable

Supreme Court has held that, if a light motor vehicle's unladen

weight and a transport vehicle's gross weight does not exceed

7500 kgs, the same would be treated as a light motor vehicle.

12. In the light of Ext.B3 registration particulars, it is

proved that the jeep does not have a gross weight/unladen

weight exceeding 7500 kgs. Therefore, there is no requirement

in law, as laid down in Mukund Dewangon (supra), for a person

to hold a badge/authorisation to drive a transport vehicle/light

motor vehicle having gross weight/unladen weight of less than

7500 kgs. Consequentially, it is only to be held that, the

contention of the 7th respondent that the appellant had violated MACA NO. 3280 OF 2015

the insurance policy conditions is untenable in law. As a corollary

to the above declaration of law, the non-holding of the badge by

the 5th respondent/driver is irrelevant and immaterial. Hence,

the direction in the impugned award permitting the 7 th

respondent - insurer to recover the compensation amount from

the appellant is unsustainable in law and the same is only liable

to be set aside.

In the result, the appeal is allowed. The direction in the

impugned award in OP(MV) No.32/2009, permitting the 7 th

respondent/insurer to recover the compensation amount from

the appellant/3rd respondent is set aside. In the peculiar facts and

circumstances of the case, the parties shall bear their respective

costs.

Sd/-

C.S.DIAS, JUDGE rkc/30.11.21