Abdul Latheef v. Beepathimma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 MACA NO. 589 OF 2012** **AGAINST THE AWARD DT.16.09.2011 IN OPMV 52/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/2ND RESPONDENT:** ABDUL LATHEEF S/O.KUNHAMMED MASTER MANZIL PALLIKKAL THALANGARA POST KASARAGOD TALUK BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH ## **RESPONDENT/S:** 1 BEEPATHIMMA W/O.LATE P.K.MOHAMMED R/AT MANTHOLY HOUSE PERUMBALA VILLAGE AND POST KASARAGOD TALUK 671121 2 DAINABI D/O.BEEPATHIMMA,R/AT -DO3 NAFEESA D/O.BEEPATHIMMA,R/AT -DO4 SUBAIDA D/O.BEEPATHIMMA,R/AT -DO5 AFSSATH S/O.BEEPATHIMMA,R/AT -DO6 MUMTHAZ D/O.BEEPATHIMMA,R/AT -DO7 KAIRUNISA D/O.BEEPATHIMMA,R/AT -DO8 AYISHA D/O.BEEPATHIMMA,R/AT -DO9 RABIYA D/O.BEEPATHIMMA,R/AT -DO- M.A.C.A.No.589/2012 2 - 10 MAIMOONA D/O.BEEPATHIMMA,R/AT -DO- - 11 NOORJAHAN AGED 17 YEARS (D.O.B 22.07.1993) - 12 ABBAS AGED 12 YEARS(D.O.B 7.12.1998) - R2 TO R12 ARE CHILDREN OF LATE P.K.MOHAMMED AND R1, R11 AND R12 ARE MINORS REP.BY 1ST RESPONDENT GUARDIAN-MOTHER. ALL ARE R/AT MANTHOTY HOUSE, PERUMBALA VILLAGE & POST, KASARAGOD TALUK MIRSHAD ALIAS NIZHAD, S/O.MOHAMMED, - 133 S.P.NAGAR, HIDAYATH NAGAR POST, KASARAGOD TALUK 671121 - 14 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY, BRANCH OFFICE, KASARAGOD 671121 - ADDL.R15 THE TAHSILDAR, REVENUE RECOVERY, KASARAGOD ADDL.R16 ABOOBACKER SIDDIQUE.P - S/O.ABDUL REHIMAN.P, MUGOOR ROAD HOUSE P.O PUTHIGE, KUMBLA, EDANAD VILLAGE, KASARGOD TALUK AND DISTRICT - (ADDL.RESPONDENTS 15 AND 16 ARE IMPLEADED AS ADDL.RESPONDENTS 15 AND 16 RESPECTIVELY VIDE ORDER DATED 27.05.2013 IN I.A.NOS.1205 OF 2013 AND 1286 OF 2013 IN M.A.C.A.NO.589 OF 2012) SMT DEEPA GEORGE,R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.589/2012 3 **M.R.ANITHA, J ******************** M.A.C.A.No.589 of 2012 --------------------------------------------------Dated this the 8[th] day of April, 2022 ## **JUDGMENT** This appeal has been filed by the second respondent against the award in O.P.M.V No.52/2007 on the file of Motor Accidents Claims Tribunal, Kasaragod (in short 'Tribunal'). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short 'the Act') out of the injuries sustained by respondents 1 to 12/claimants who are the wife and children of deceased P.K.Mohammed who died in a motor accident occurred on 07.05.2006 due to hit by motorcycle bearing Reg.No.KL14D/3008 ridden by the 13[th] respondent/1[st] respondent. A total compensation of Rs.3,81,000/- was claimed which was limited to Rs.3,00,000/-. 2. Appellant is the registered owner of the vehicle and M.A.C.A.No.589/2012 4 14[th] respondent/3[rd] respondent is the insurer. It is alleged that the accident happened due to the rash and negligent riding of the motorcycle by the 13[th] respondent/1[st] respondent. 3. Before the Tribunal, 13[th] respondent/1[st] respondent remained ex parte. Appellant and the 14[th] respondent filed separate written statements. In the written statement filed by the appellant, he denied that he is the owner of the motorcycle bearing Reg.No.KL-14D/3008. He had sold the vehicle to 16[th] respondent as per sale agreement on 10.02.2016. The vehicle was handed over to 16[th] respondent but name of the owner in the registration certificate was not changed. Appellant issued Form Nos.29 and 30 to 16[th] respondent but he did not take any steps to transfer the ownership of the vehicle. 13[th] respondent/rider who was a minor at the time of accident took the vehicle unauthorisedly from the 16[th] respondent and met with the accident. Neither the 16[th] respondent nor the appellant permitted the 13[th] respondent/1[st] respondent to ride the vehicle. Hence the appellant is not liable to compensate the respondents 1 to 12/the M.A.C.A.No.589/2012 5 claimants. It is also contended that the vehicle is validly covered by a policy of insurance issued by the 14[th] respondent and hence the 14[th] respondent is liable to pay the amount. 4. 14[th] respondent/third respondent filed separate written statement admitting the policy coverage with respect to the offending vehicle. But the liability is denied. Negligence on the part of the 13[th] respondent is denied and it is contended that the accident happened due to the negligence of the deceased. It is further contended that 13[th] respondent has no valid and effective driving licence and the appellant knowingly entrusted the vehicle to a person not having valid driving licence and violated the conditions of policy issued by the third respondent. Police registered petty case against the appellant as well as the 13[th] respondent. Exts.A1 to A4 series and Ext.X1 marked from the side of respondents 1 to 12. Exts.B1 to B3 marked from the side of 14[th] respondent/3[rd] respondent. 5. During the pendency of the appeal, the Tahsildar (R.R), Kasaragod and the subsequent transferee, Aboobacker M.A.C.A.No.589/2012 6 Siddique were impleaded as 15[th] and 16[th] respondents as per the order dated 27.05.2013 in I.A.Nos.1205/2013 and 1286/2013 respectively. 6. Though notice was duly served upon respondents 15 and 16, there was no appearance for the 16[th] additional respondent. 7. Now the argument of the learned counsel for the appellant is that he has raised his contention in the written statement about the transfer of the vehicle to Sri.Aboobacker Siddique. In this context, learned counsel placed reliance on **Raveendran v. Sarojini : 2010 (1) KLT SN 92 (C.No.112)** and **National Insurance Co.Ltd. v. Swaran Singh : 2004 (1) KLT 781** wherein a Division Bench of this Court while dealing with Section 149(2)(a)(ii) it has been held that in order to establish breach of policy conditions e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub Section 2(a) of S.149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or M.A.C.A.No.589/2012 7 invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicles by licensed driver or one who was not disqualified to drive at the relevant time. Learned counsel also placed reliance on **Oriental Insurance Co.Ltd v. Jayan : 2012 (3) KLT SN 115 (C.N.118)** wherein it has been held that mere absence of driving licence by the person who drove the vehicle at the time of accident is not enough, the insurance company has to prove that the vehicle was allowed consciously to be driven by the owner of the vehicle by a person who is not holding a valid licence. Tribunal, in this case, found that inspite of the contention of the appellant, that he has sold the motorcycle to the 16[th] respondent and during that time, the 16[th] respondent was the owner, that claim has not been substantiated. It is admitted that M.A.C.A.No.589/2012 8 the registration certificate of the vehicle was not transferred in the name of Aboobacker Sidduqe. Tribunal also entered into a finding that appellant entrusted the vehicle with the 13[th] respondent without driving licence and thereby violated the policy conditions. But there is no material before the Tribunal for coming to such a conclusion. If the vehicle has already been transferred by the appellant to the 16[th] respondent, there is no possibility of appellant entrusting the vehicle with the 13[th] respondent consciously knowing that he is not having driving licence, since he may not have any control over the vehicle. Hence finding so made by the Tribunal is baseless and perverse. It is true that as per the law laid down in **Pushpa alias Leela and others v. Shakuntala and others (2011) 2 SCC 240** and **Naveen Kumar v. Vijayakumar : 2018 (3) SCC 1** the appellant would be liable to third parties being the person in whose name Registration Certificate stands, but in order to exonerate the liability of the 14[th] respondent/insurer there is a duty cast upon it to prove that the vehicle was driven by the 13[th] M.A.C.A.No.589/2012 9 respondent herein and either the appellant or the 16[th] respondent allowed the 13[th] respondent consciously to drive the vehicle without holding licence. There is absolutely no evidence to substantiate that fact. 8. Appellant did not produce Ext.B4 the alleged sale agreement before the Tribunal inspite of raising such a specific contention. Ext.B4 was produced before this Court at the time of argument and it is marked as Ext.B4 subject to proof. Admissibility of the same is yet to be proved in evidence. The only contention of the learned counsel for the appellant is for a remand of the matter to the Tribunal to establish the transfer of the vehicle by him to the 16[th] respondent as well as his nonliability to pay the amount since it has already been transferred. As per the settled position of law above discussed he being the registered owner of the vehicle for the purpose of Motor Vehicles Act, 1988, the appellant would be treated as the owner of the vehicle since the policy also stands in his name. But, at the same time, in order to exonerate the liability of the 14[th] respondent it M.A.C.A.No.589/2012 10 has to be established that either the appellant or the 16[th] respondent Aboobacker Sidduqe has entrusted the vehicle with the 13[th] respondent consciously knowing about the fact that he was not having licence to drive the vehicle. Those facts are to be proved in evidence by the insurer as per the decision in **Ravindran, Swaran Singh** as well as **Jayan** referred above. In the result, the award passed by the Tribunal is set aside to the extent of ordering pay and recovery as against the appellant and the case is remanded and an opportunity is given to the appellant to prove the transfer of the vehicle and to establish the claim, if any, in the matter of pay and recovery ordered by the Tribunal. Parties shall appear before the Tribunal on or before 16.05.2022. Since the case is of the year 2007, the Tribunal is directed to dispose the matter within three months from the date of receipt of the certified copy of the judgment. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge