Kerala High Court
Babychen K. Varghese vs Omanakuttan on 3 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
MACA NO. 248 OF 2012
AGAINST THE AWARD DATED 16.07.2011 IN OP(MV)NO.1198/2008 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/1ST RESPONDENT:
BABYCHEN K. VARGHESE,
THOTTIYIL HOUSE, MALAM P.O.,
KOTOTAYAM.
BY ADV SRI.MATHEW PHILIP EDAPPALLIL
RESPONDENTS/ PETITIONER/ RESPONDENTS 2 AND 3:
1 OMANAKUTTAN,
KORATTIYIL HOUSE, MANARCADU VILLAGE,
THIRUVANCHOOR P.O., KOTTAYAM-686037.
2 JOMON,
KANIYANKULAM HOUSE, PUTHUPALLY P.O.,
MADATHILPADY, KOTOTAYAM-686011.
3 THE ORIENTAL INSURANCE CO.LTD.,
KOTTAYAM-686001.
BY ADVS. SRI.SURIN GEORGE IPE
SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.248/2012
-:2:-
Dated this the 3rd day of January,2022
JUDGMENT
The appellant was the first respondent in O.P
(MV) No.1198/2007 on the file of the Motor Accidents
Claims Tribunal,Kottayam. The respondents in the
appeal were the petitioner and respondents 2 and 3
before the Tribunal. The parties are, for the sake of
convenience, referred to as per their status before the
Tribunal.
2. The petitioner had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on account of the injuries that
he sustained in an accident on 14.05.2007. It was his
case that, on the above date, while he was travelling as
a passenger in an autorickshaw bearing registration
No.KL-5-6885 through the Kavumpady-Thannickapadi
road, a Mini lorry bearing registration No.KL-5-S-3821
(lorry), driven by the second respondent in a negligent
manner, hit the autorickshaw. The appellant sustained
M.A.C.A.No.248/2012
serious injuries. The lorry was owned by the first
respondent and insured with the third respondent.
The appellant claimed a compensation of Rs.2,65,000/-
from the respondents, which was limited to
Rs.2,50,000/-.
3. The respondent Nos.1 and 2 did not contest
the proceeding and were set ex parte.
4. The third respondent had filed a written
statement contending that the second respondent did
not hold a valid driving licence since he did not have a
badge to drive the lorry. Therefore, there was violation
of insurance policy conditions and the third
respondent may be exonerated of its liability.
5. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition in
part, by permitting the petitioner to recover an amount
of Rs.66,032/- from the third respondent with interest
and cost. The third respondent was also permitted to
recover the compensation amount from respondents 1
M.A.C.A.No.248/2012
and 2.
6. Aggrieved by the direction in the impugned
award, permitting the third respondent to recover the
compensation amount from the respondents 1 and 2,
the first respondent is in appeal.
7. Heard; Sri. Mathew Philip Edappallil, the
learned counsel appearing for the appellant/first
respondent, Sri. Surin George Ipe, the learned counsel
appearing for the second respondent and
Sri. VPK.Panicker, the learned counsel appearing for
the third respondent/insurer.
8. The question that arises for consideration in
this appeal is whether the direction in the impugned
award permitting the third respondent to recover the
compensation amount from the appellant is
sustainable in law or not?
9. The definite case of the third
respondent-insurer was that the second respondent
did not have a badge to drive the lorry. Even though
M.A.C.A.No.248/2012
the first respondent had produced and marked the
copy of the permit and the registration certificate of
the lorry as Exts.B2 and B3, the same was not
considered by the Tribunal. As per the said documents,
the unladen weight and gross weight of the lorry is
2400 Kg. and 5300 Kg., respectively.
10. In Mukund Dewangan v. Oriental
Insurance Company Limited [2017 (3) KLT 1000
(SC)] , the Hon'ble Supreme Court has held that, if the
gross weight of a transport vehicle does not exceed
7500 Kg., the same has to be treated as a 'light motor
vehicle'.
11. In the light of Exts.B2 and B3 certificates, it
is proved that the gross weight of the lorry does not
exceed 7500 Kg. Therefore, there is no requirement in
law, as laid down in Mukund Dewangan (supra), for
the second respondent to hold a badge to drive the
lorry in question. Consequentially, it is to be held that
the contention of the third respondent, that the first
M.A.C.A.No.248/2012
respondent had violated 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 second respondent-driver of the lorry is
irrelevant and immaterial. Hence, the direction in the
impugned award, permitting the third
respondent-insurer to recover the compensation
amount from the appellant and the second
respondent/respondents 1 and 2 before the Tribunal is
unsustainable in law and is only to be set aside.
In the result, the appeal is allowed. The direction
in the impugned award in O.P.(MV)No.1198/2007 of
the Motor Accidents Claims Tribunal,Kottayam,
permitting the third respondent-insurer to recover the
compensation amount from the appellant and the
second respondent/ respondents 1 and 2 is set aside. It
is made clear that, if the compensation amount has
already been recovered from the appellant and
deposited before the Tribunal, the appellant would be
M.A.C.A.No.248/2012
at liberty to move the Tribunal for recovery of the
deposited amount in accordance with law. Needless to
mention that, if the amount has already been
disbursed to the third respondent-insurer, the Tribunal
shall direct the third respondent-insurer to repay the
amount to the appellant. In the light of the appeal
being allowed, the amount deposited by the appellant
as a pre-condition to file the appeal shall be refunded
to him in accordance with law. In the facts and
circumstances of the case, the parties shall bear their
respective costs. All pending interlocutory applications
will stand closed.
Sd/-
C.S.DIAS,JUDGE
DST/03.01.22 //True copy/
P.A.To Judge
