Dasayyan vs Sajeev
2022 Latest Caselaw 2885 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
    WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                        MACA NO. 2961 OF 2019
AGAINST THE ORDER IN OP(MV) 831/2015 DATED 30.04.2019 OF THE MOTOR
          ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM
APPELLANT/PETITIONER:

          DASAYYAN
          S/O. LASAR NADAR, MANAPPURATHU VEEDU,
          KAIRALI ROAD, KARYAVATTOM P. O.,
          PANGAPPARA, SREEKARYAM,
          THIRUVANANTHAPURAM PIN - 695581.


          BY ADV V.C.SARATH



RESPONDENTS/RESPONDENTS 1 TO 3:

    1     SAJEEV
          S/O. DIVAKARAN, CHARUVILA VEEDU,
          PERUMKUZHY P. O., CHIRAYINKEEZHU,
          PIN - 695306.


    2     RAMESAN B.
          S/O. BHARGAVAN, KOZHINJVILA VEEDU,
          PERUMKUZHY P. O., KRISHNAPURAM,
          CHIRAYANKEEZHU, PIN - 695306.

    3     NATIONAL INSURANCE COMPANY LTD.
          DIVISIONAL OFFICE, ST. JOSEPH PRESS BUILDING,
          OPP. COTTON HILL GIRLS HIGH SCHOOL, VAZHUTHACAUD,
          THIRUVANANTHAPURAM - 695014.

          BY ADVS.
          SRI.GEORGE CHERIAN (SR.)
          SMT.K.S.SANTHI
          SMT.LATHA SUSAN CHERIAN


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
  MACA NO. 2961 OF 2019

                                    2



                           JUDGMENT

The claim petition was dismissed on the

ground that the first respondent was exonerated

from the liability and as such, the insurer, the

third respondent is not liable to compensate the

petitioner. The relevant portion of the

judgment is extracted below for reference:

"12. I have already found that the accident occurred due to the negligence of the 2nd respondent the rider of the offending vehicle. So he is having primary liability for the accident. The 1st respondent being the RC owner of the offending vehicle, is having vicarious liability to pay compensation. As already stated, since the petitioner failed to take steps to issue notice to the 1 st respondent, petition against him was already dismissed for default. Hence, the 1st respondent cannot be held liable to pay compensation. As the 1st respondent is not liable to pay compensation, the 3rd respondent the insurer cannot be held liable to indemnify the 1st MACA NO. 2961 OF 2019

respondent. Therefore, the petitioners are not entitled to get compensation from the respondents and this petition is liable to be dismissed. The issue is answered accordingly."

2. The learned Tribunal has committed a

grave mistake by observing that the first

respondent cannot be held liable to pay

compensation. Hence, the third respondent

insurer cannot be held liable to indemnify the

first respondent. The principle of vicarious

liability has not been understood in its correct

perspective by the Tribunal. The wrongdoer, the

driver of the vehicle was in the party array of

the suit and the owner of the vehicle, who is

vicariously liable was also made as a party to

the suit along with the insured. It is true

that the petition happened to be dismissed as

against the first respondent/owner for default.

The dismissal of the application for default as

against the first respondent will not relieve MACA NO. 2961 OF 2019

him from the liability to compensate the

petitioner for the wrong done by the driver of

the vehicle. It is an admitted case that there

was a valid policy at the time when the accident

has happened and as such, the insurance company

is liable to compensate the petitioner for the

act done by the wrongdoer by stepping into the

shoes of the owner of the vehicle who is

vicariously liable to compensate the petitioner.

As discussed earlier, mere dismissal of

application for default will not relieve the

owner of the vehicle from the liability. Hence,

the insurer is liable to compensate the

petitioner when the liability is covered by a

valid policy. The legal position may be

different when the insurer disputes the

liability on account of any violation of policy

conditions or claims reimbursement from the

owner of the vehicle. Hence, the dismissal of

the application after adjudicating the

entitlement of claim in terms of money cannot be MACA NO. 2961 OF 2019

sustained. The Tribunal assessed the

compensation at Rs.1,63,300/- with 8% interest

per annum from 19/05/2015 till the date of

realization. Hence the order of dismissal of

the claim petition is hereby set aside, by

awarding an amount of Rs.1,63,300/- with

interest @ 8% per annum from 19/05/2015 till the

date of realization from the third respondent

insurer.

The appeal is allowed accordingly.

Sd/-

P.SOMARAJAN JUDGE SPV