Kerala High Court
United India Insurance Co. Ltd vs Subaida, D/O. Marakkar Haji on 5 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
MACA NO. 1612 OF 2006
AGAINST THE ORDER/JUDGMENT DATED 06.02.2006 IN OPMV NO.2152 OF 1998 OF IST
ADDITIONAL M.A.C.T, KOZHIKODE
APPELLANT/S:
UNITED INDIA INSURANCE CO. LTD.
REP. BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, SHARANYA,
HOSPITAL ROAD,KOCHI 11.
BY ADVS.
SRI.JOHN JOSEPH VETTIKAD
SRI.C.JOSEPH JOHNY
RESPONDENT/S:
1 SUBAIDA, D/O. MARAKKAR HAJI,
AGED ABOUT 52 YEARS, THOTTINJAN HOUSE,, COLLEGE ROAD,
RAMANATTUKARA. ADDL. RESPONDENT 8 TO 17 RESPONDENTS.
2 MARIYUMMA @ SAHIRA,
D/O. MARAKKAR HAJI, AGED ABOUT 49 YEARS, "AKMA", RAMANATTUKARA.
3 SHEMINA, AGED ABOUT 38 YEARS,
D/O. MARAKKAR HAJI, KOORIYADAN HOUSE, P.O. KARAMBIL, MALAPPURAM
DISTRICT.
4 SHMIRS, AGED ABOUT 37 YEARS,
D/O. MARAKKAR HAJI, KOORIYADAN HOUSE, P.O. KARAMBIL, MALAPPURAM
DISTRICT.
5 MUJEEB RAHIMAN,
AGED ABOUT 35 YEARS, S/O. MARAKKARA HAJI, KOOIYADAN HOUSE, P.O.
KARAMBIL, MALAPPURAM DISTRICT.
6 MARIYUMMA,
AGED ABOUT 92 YEARS, W/O. MARAKKAR HAJI, KOORIYADAN
HOUSE,P.O.KARAMBIL, MALAPPURAM DISTRICT.
7 PUTHOOR MOIDEEN,
S/O. KUNHALAN, PUTHUR HOUSE, VALAKULAM P.O. ( DIED). ADDL.
RESPONDENTS 8 TO 17 SOUGHT TO BE IMPLEADED
8 SUBAIDA,
SOUGHT TO BE IMPLEADED , AGED ABOUT 55 YEARS, W/O. MOIDEEN,
PATHOOR HOUSE, KOZHICHENNA, ( PERUMANNA GRAMA PANCHAYATH,
KUTTIPPALA VILLAGE), VALAKOLAM P.O., MALAPPURAM DISTRICT - 676
508.
9 AFSATH,
SOUGHT TO BE IMPLEADED , AGED ABOUT 37 YEARS, D/O. MOIDEEN,
PATHOOR HOUSE, KOZHICHENNA, ( PERUMANNA GRAMA PANCHAYATH,
KUTTIPPALA VILLAGE), VALAKOLAM P.O., MALAPPURAM DISTRICT - 676
508.
MACA. No. 1612 of 2006
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10 UMMAR ALI ,
SOUGHT TO BE IMPLEADED , AGED ABOUT 34 YEARS, S/O. MOIDEEN,
PATHOOR HOUSE, KOZHICHENNA ( PERUMANNA GRAMA PANCHAYATH,
KUTTIPPALA VILLAGE), VALAKOLAM PO. MALAPPURAM DISTRICT - 676
508.
11 AMEERA,
SOUGHT TO BE IMPLEADED , ABOUT ABOUT 27 YEARS, S/O. MOIDEEN,
PATHOOR HOUSE, KOZHICHENNA, ( PERUMANNA GRAMA PANCHAYATH,
KUTTIPPALA VILLAGE), VALAKOLAM P.O. MALAPPURAM DISTRICT - 676
508.
12 KADEEJA,
SOUGHT TO BE IMPLEADED, AGED ABOUT 24 YEARS, S/O. MOIDEEN,
PATHOOR HOUSE, KOZHICHENNA, (PERUMANNA GRAMA PANCHAYATH,
KUTTIPPALA VILLAGE), VALAKOLAM P.O., MALAPPURAM DISTRICT - 676
508.
13 MOHAMMED FARIZ,
SOUGHT TO BE IMPLEADED, AGED ABOUT 22 YEARS, S/O. MOIDEEN,
PATHOOR HOUSE, KOZHICHENNA, ( PERUMANNA GRAMA PANCHAYATH,
KUTTIPPALA VILLAGE), VALAKOLAM P.O., MALAPPURAM DISTRICT - 676
508.
14 SUHARABI,
SOUGHT TO BE IMPLEADED , AGED ABOUT 47 YEARS, W/O. MOIDEEN,
PATHOOR HOUSE, VARIATH PARA ( HOUR NO. 276, WARD NO.VIII
THENNALA GRAMA PANCHAYATH), THENNALA P.O., MALAPPURAM DISTRICT -
676 508.
15 ASLAM,
SOUGHT TO BE IMPLEADED , AGED ABOUT 25 YEARS, S/O. MOIDEEN,
PATHOOR HOUSE, VARIATH PARA ( HOUSE NO. 276, WARD NO. VIII
THENNALA GRAMA PANCHAYATH), THENNALA P.O., MALAPPURAM DISTRICT -
676 508.
16 NOORJAHAN,
SOUGHT TO BE IMPLEADED, AGED ABOUT 23 YEARS, D/O. MOIDEEN,
PATHOOR HOUSE, VARIATH PARA ( HOUSE NO 276, WARD NO. VIII
THENNALA GRAMA PANCHAYATH), THENNALA P.O., MALAPPURAM DISTRICT -
676 508.
17 MURSHIDHA,
SOUGHT TO BE IMPLEADED, AGED ABOUT 21 YEARS, W/O. MOIDEEN,
PATHOOR HOUSE, VARIATH PARA ( HOUSE NO. 276, WARD NO. VIII
THENNALA GRAMA PANCHAYATH), THENNALA P.O., MALAPPURAM DISTRICT -
676 508.
BY ADV K.A.SALIL NARAYANAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA. No. 1612 of 2006
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SOPHY THOMAS, J.
=====================
M.A.C.A. No. 1612 of 2006
========================
JUDGMENT
Dated this the 05th day of April, 2024
This appeal is at the instance of the 3 rd respondent United India
Insurance Company in O.P. (MV) No. 2152 of 1998 on the file of Ist
Motor Accident Claims Tribunal, Kozhikode seeking a direction for
'pay and recovery' of the compensation amount, from the owner of
the offending vehicle, as the driver had no valid driving licence to
drive the offending vehicle at the time of accident.
2.One Mr. Marakkar Haji died in a road traffic accident occurred
on 16.08.1998 involving KL/10-A 8485 lorry. The 1st respondent
Puthur Moideen was the owner of that lorry, the 2 nd respondent
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Cherukattil Sabir was its driver, and the 3rd respondent United India
Insurance Co.Ltd. was its insurer. The accident occurred due to the
rash and negligent driving of that lorry by the second respondent. The
legal heirs of deceased Marakkar Haji approached the Tribunal
claiming compensation, and learned Tribunal awarded compensation
of Rs.2,16,000/- with interest, fixing the liability on the 3 rd respondent
as the offending was validly insured with them.
3. The 3rd respondent insurer filed the appeal contending that the
driver of the offending lorry had no valid driving licence to drive
heavy vehicles like the offending vehicle, and since there was
violation of the policy conditions, though the company could pay the
compensation initially, they are eligible to recover the compensation
from the owner of the offending lorry. But, learned Tribunal, relying
on Ext.A1 copy of the FIR, denied that right to the insurer, stating
that, in the FIR, the name of the driver is shown as Ummer.
4. In the original petition the claimants have shown the name of
Mr. Sabir Cherukattil as the driver of the lorry at the time of accident.
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In OP(MV) filed in the year 1998 respondents 1 and 2 the owner and
driver were served with notice. But they opted to remain absent. If the
2nd respondent was not the driver at the relevant time, either he or the
first respondent owner could have brought that fact to the notice of
the Tribunal at the earliest. The final report in Crime No. 307/1998
was also not produced by respondents 1 and 2 to show that Sri. Sabir
was not charged by police, and the charge was filed against some
other person.
5. In the appeal, the owner and driver were arrayed as
respondents 7 and 8. Originally, the 8 th respondent was the driver of
the offending vehicle. . Since service could not be completed as he
was in gulf, he was deleted from the party array on the request of the
appellant. The 7th respondent owner died and so his legal heirs were
impleaded as additional respondents 8 to 17. Additional respondents 8
to 17 entered appearance through counsel, and contested the appeal.
But no evidence is there to show that Sri. Sabir was not the driver of
the offending vehicle at the time of accident. So, the finding of the
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Tribunal that the offending vehicle was driven by one Mr.Ummer, and
not by Mr. Sabir is liable to be set aside.
6. Ext.P2 the copy of driving license of Mr.Sabir shows that, he
was having driving licence to drive light motor vehicles and three
wheelers alone, and he was not having driving licence to drive heavy
vehicles. The offending vehicle was a lorry, and so its, driver requires
heavy vehicle licence. So, this Court is inclined to find that the driver
of the offending lorry at the time of accident was not having valid
driving licence, to drive heavy vehicles, and hence there was
violation of policy conditions. So, the owner of the offending vehicle
is vicariously liable for the act of his driver. Since, that vehicle was
duly insured with the appellant insurer, they have to make payment of
the compensation to the legal heirs of deceased Marakkar Haji
initially, but, they can recover that amount from the owner of the
offending vehicle. Since the 7th respondent owner is no more, and he
is represented by his legal heirs additional respondents 8 to 17, the
appellant can recover the compensation amount deposited by them
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from additional respondents 8 to 17, and, the assets of deceased 7 th
respondent, now held by them.
The appeal is allowed to the extent as above. No order as to
costs.
Sd/-
SOPHY THOMAS
JUDGE
RMV
