Achamma Chacko vs Cholamandalam M.S. General Insurance ...
2024 Latest Caselaw 28097 Ker

Kerala High Court

Achamma Chacko vs Cholamandalam M.S. General Insurance ... on 24 September, 2024

                                             2024:KER:71211

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE EASWARAN S.

TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946

                   MACA NO. 349 OF 2021

     AGAINST THE ORDER/JUDGMENT DATED 14.07.2020 IN OPMV

NO.38 OF 2018 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA /

II ADDITIONAL MACT, THODUPUZHA

APPELLANT/2ND RESPONDENT:

         ACHAMMA CHACKO
         AGED 50 YEARS, W/O. CHACKO,
         KOLLAMKUNNEL HOUSE, NAYARUPARA P.O.,
         MARIYAPURAM, IDUKKI DISTRICT-685602.

         BY ADVS.
         T.J.MICHAEL
         SRI.R.KRISHNAKUMAR (CHERTHALA)
         SMT.TINY THOMAS


RESPONDENT/4TH RESPONDENT:

         CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LTD.
         REPRESENTED BY ITS MANAGER, 2ND FLOOR,
         ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD,
         ERNAKULAM, KOCHI-682011.

         BY ADV LINTO FRANCIS


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 24.09.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 349 OF 2021

                                 2

                                                    2024:KER:71211



                           JUDGMENT

Dated this the 24th day of September, 2024

Appellant is the owner of a registered stage carriage

bearing Reg.No. KL 06 D 8112. The appellant aggrieved by the

direction of the Motor Accidents Claims Tribunal-II, Thodupuzha

in, O.P. (MV) No.38/2018 to the extent of allowing the insurance

company to pay the amount of compensation so awarded and

recover the same from the owner, has approached this Court.

2. Only point on which the insurance company

has been granted liberty to recover the amount from the owner

is that, in the absence of a valid driving licence in favour of the

driver of the vehicle in question, the owner has been mulcted

with the liability to pay the insurance company, the facts which

led to the accident is not narrated for the sake of brevity.

3. The claim was contested by the insurance

company by stating that there was no fitness and the driver had

no licence at the time of accident. The driver was not duly MACA NO. 349 OF 2021

2024:KER:71211 licenced to drive the vehicle in question. On behalf of the

claimant, Exts.A1 to A11 were marked. On behalf of the

respondent Exts.B1 to B5 were marked. The tribunal, after

considering the contention of the 4th respondent that the driver

of the offending vehicle had no driving licence and also while

analysing Ext.B3, found that the 1st respondent was having a

valid driving licence from 12.10.2017 to 11.10.2022 and the

accident occurred on 25.04.2017 and that the 2nd respondent

failed to produce the valid driving licence of the 1 st respondent

during the period of accident and thus at the time of accident

there was no driving licence, and therefore, that constituted a

breach of the policy conditions, which would necessitate an

order enabling the insurance company to pay and recover the

amount from the owner has to be necessarily passed.

4. I have heard Smt.Reshma Cheriyan, the

learned counsel appearing for the appellant and Sri.Linto

Francis, the learned counsel appearing for the insurance

company.

MACA NO. 349 OF 2021

2024:KER:71211

5. Smt. Reshma Cheriyan, the learned counsel

appearing for the appellant pointed out that the finding of the

tribunal is erroneous and the tribunal had failed to take notice

that the licence of the driver was renewed and at the time of the

accident, he was also having a valid driving licence. Reliance is

placed on Annexures A1 and A2, which are all the certified

copies of the documents produced before the tribunal, which

the tribunal failed to take notice of appropriately while rendering

the award. She would further rely on the judgment of the Full

Bench of this Court in National Insurance Company Ltd.v.

Jisha K.P and others [(2015) 1 KHC 29] to contend for the

proposition that a technical violation, like the absence of a

badge by the driver of the transport vehicle, is not sufficient to

exonerate the insurance company from the liability.

6. On the other hand, Sri. Linto Francis, the

learned counsel for the insurance company, would place

reliance on the Larger Bench judgment of this Court in Oriental

Insurance Company v. Paulose [(2015) 1 KLT 682] and also MACA NO. 349 OF 2021

2024:KER:71211 unreported judgment of the learned single judge in

Thresiakutty v. Abdul Khadar, MACA No.1923 of 2009

decided on 10th February 2022 and also the judgment of the

Apex Court in Parminder Singh v. New India Assurance

Co.Ltd [(2019) 3 KLT Online 3133 (SC)] to contend for the

proposition that if the drivers of the offending vehicles were not

possessing a valid driving licence at the time of the accident, in

such cases the insurance company is entitled to recover the

amount from the owner.

7. I have considered the rival submissions raised

across the Bar.

8. The only point which requires to be considered

by this Court is as to whether the finding of the tribunal in

ordering the insurance company to pay the compensation and

recover the same from the owner requires to be interfered by

this Court in exercise of its appellate power. The perusal of

paragraph No.14 of the award shows that the only reason on

which the tribunal ordered the insurance company to pay the MACA NO. 349 OF 2021

2024:KER:71211 amount and recover it from the owner was since the driver had

a licence only from 12.10.2017 to 11.10.2022 whereas the

accident took place on 25.04.2017. However, Annexure A1

would show that the driver had the driving licence from

16.04.2014 to 15.04.2019 for a non transport vehicle and for

transport vehicle from 16.04.2014 to 15.04.2017. It was

contended that, later the licence was also renewed from

12.10.2017 to 11.10.2022 in respect of non transport vehicle

and also in respect of transport vehicle it was renewed from

12.10.2017 to 11.10.2020. Hence, it is contended that the

tribunal ought not to have ordered the amount to be recovered

from the insurer.

9. Although the learned counsel for the appellant

placed reliance on the Full Bench judgment of this Court in

Jisha K.P (supra), on a perusal of the pleadings before the

tribunal as well as before this Court, it is evident that the tribunal

has ordered recovery of the amount so paid by the insurance

company, not on the question of non-availability of the badge. MACA NO. 349 OF 2021

2024:KER:71211 But rather on contrary it is a case where the insurance company

was allowed the right of recovery since the driver did not

possess a valid driving licence at the time of the accident.

Therefore, essentially this Court will have to see as to whether

on the date of accident the driver had a valid driving licence. A

perusal of Ext.B3 would show that the driving licence was valid

from 12.10.2017 to 11.10.2022. However, the appellant has a

different case altogether and for the first time in the appeal, it is

being projected that the driver did not have a valid badge at that

point of time and he had a valid driving licence. Of course, the

learned counsel for the appellant is justified in contending that,

if it is a case of non availability of the badge at that particular

point of time when the accident occurred, still the insurance

company could be made liable and no order to recover the

amount from the owner could be ordered. However, that is not

the case here. Admittedly going by Annexure A1, the licence of

a transport vehicle was valid only in 15.04.2017 and the date of

accident was 25.04.2017. Of course, the driving licence though MACA NO. 349 OF 2021

2024:KER:71211 expired could have been renewed within a period of thirty days.

On the contrary, even going by the pleadings and documents

on record, it is seen that the driving licence was renewed only

with effect from 12.10.2017. This would certainly dent the case

of the appellant and it would clearly demonstrate that at the

time of the accident the driver had no valid driving licence in his

name. In this context, this Court finds force in the argument of

the learned counsel for the insurance company that on the

basis of the Larger Bench judgment of this Court in Paulose

(supra), wherein it was held that if the driving licence stood

expired on the date of the road traffic accident and not

subsequently renewed within the statutory period of thirty days,

the same would not fulfill the requirement of "duly licenced"

under Section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988

and thus, the insurance company is entitled to recover the

amount so ordered by the tribunal.

In view of the proposition expounded by the Larger

Bench of this Court, this Court has no hesitation to hold the MACA NO. 349 OF 2021

2024:KER:71211 award of the tribunal is not liable to be interfered in any manner,

since it does not suffer from any legality or impropriety much

less any jurisdictional error. Hence, the appeal lacks merits and

the same is dismissed. No order as to costs.

Sd/-

EASWARAN S. JUDGE

STB MACA NO. 349 OF 2021

2024:KER:71211

PETITIONER ANNEXURES

ANNEXURE A1 CERTIFIED COPY OF THE DRIVING LICENCE BEARING NO.37/234/1983 DATED 26.4.2016 ISSUED BY THE ASST. LA, IDUKKI.