Ali, S/o. Sulaiman v. Mumthaz and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934** **MACA.No.1023 of 2008 (C)** **------------------------(AGAINST THE AWARD IN OP(MV).NO.970/2005 of M.A.C.T., TIRUR** **APPELLANT(S)/IST RESPONDENT: ----------------------------** **ALI, S/O. SULAIMAN, CHELAKKAL HOUSE, PADINHAREKKARA, P.O. KOOTTAYIL, TIRUR TALUK MALAPPURAM DISTRICT.** **BY ADVS.SRI.K.RAMACHANDRAN, SMT.R.MEERA.** **RESPONDENT(S)/PETITIOINERS & R2 AND R3:** **---------------------------------------** **1. MUMTAZ, 20 YEARS, D/O. KUNHUMOHAMMED, PARIKADAVATH HOUSE PANDAYI KADAPPURAM, P.O. KOOTTAYI, TIRUR TALUK. 2. MOHAMMED ALI.C, S/O. ALI, CHELAKKAL HOUSE, PADINHAREKKARA, P.O. KOOTAYI TIRUR TALUK 3. THE NEW INDIA ASSURANCE CO. LTD, BRANCH OFFICE VARIKKODAN BUILDING, NILAMBUR ROAD MANJERI.** **R3 BY ADV. SRI.M.RAJAGOPALAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** # **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------M.A.C.A.No.1023 of 2008. --------------------------------------------Dated this the 5[th ] day of June, 2012. ## **JUDGMENT** **Pius C. Kuriakose, J** . The registered owner of a trekker whose driver was responsible for the road traffic accident causing injuries to one Mumthaz, the first respondent/claimant before the Motor Accidents Claims Tribunal, has preferred this appeal being aggrieved by the recovery right given to the third respondent insurance company to recover the compensation awarded by the Tribunal from the appellant after paying the same to the first respondent for the reason that the driver of the trekker did not have a valid driving licence at the time when the accident occurred. 2. It is conceded by Sri. K. Ramachandran, learned counsel for the appellant that at the time when the accident occurred, the second respondent driver of the trekker did not have licence to drive a transport _**M.A.C.A No.1023 of 2008**_ -:2:- vehicle. He was having only driving licence to drive light motor vehicles. That, there was violation of the policy condition, is not seriously disputed. 3. Placing strong reliance on the judgment of Supreme Court in _**National Insurance Company Ltd. v. Swaran Sing and others (AIR 2004 Supreme Court 1531)**_ and the judgment by a Bench of this Court in _**New India Assurance Company Co. Ltd. v. Balakrishnan (2011 (4) KHC 203)**_ , it was very fervently argued by Mr. Ramachandran that the insurer cannot avoid liability to pay compensation to the insured merely on proof of breach of policy condition. It has to be further proved that the violation of the policy condition was fundamental and that such violation has caused or contributed to the cause of action. 4. According to Mr. Ramachandran, in the instant case where, neither of the parties adduced any oral evidence and the only evidence was Ext.A4 and copies of documents pertaining to the same such as Scene Mahazar, F.I.R and A.M.V.I report, the Tribunal ## _**M.A.C.A No.1023 of 2008**_ -:3:- could not have held that the absence of a licence for the second respondent to drive the trekker has directly contributed to the accident resulting in injury to the first respondent/claimant. 5. Mr. Ramachandran further submitted that there was a definite contention raised by the appellant that it was not on account of the negligence on the part of the second respondent that the accident occurred. According to him, it was on account of the negligence of the driver of the autorickshaw also which collided with the trekker, that the accident occurred. Mr. Ramachandran submitted that even though the third respondent insurance company has not raised such a contention, the learned counsel requested that the O.P be remitted back to the Motor Accidents Claims Tribunal, so that the above contention can be substantiated by the appellant, so that the driver of the autorickshaw, who was responsible for the accident, at least to a certain extent, can also be made liable to pay the compensation to that extent. Mr. Ramachandran also argued that, at any rate, the compensation presently awarded is excessive. ## _**M.A.C.A No.1023 of 2008**_ -:4:- 6. All these submissions of Sri. K. Ramachandran were resisted by the learned Standing Counsel for the insurance company, who placed strong reliance on the judgment of the Supreme Court in _**National Insurance Company Ltd. v. Kusum Rai (2006 (2) KLT 300 (SC))**_ wherein, Her Lordship of the Supreme Court have laid down in unambiguous terms that: _“The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle.”_ (emphasis supplied) 7. The point noticed in the judgment of the Supreme Court in **Swaran Singh's case (cited supra)** is that there was evidence on the facts of that case to indicate that the violation of the policy condition, that is, allowing the vehicle to be driven by somebody who did not have a licence to drive the particular type of vehicle, was the direct reason for the negligence resulted in the accident. ## _**M.A.C.A No.1023 of 2008**_ -:5:- 8. The judgment in _**Kusum Rai's case (cited supra)**_ is the later decision of the Supreme Court. It has been unambiguously laid down in _**Kusum Rai's case (cited supra)**_ that it was the obligation of the owner to take adequate care that the driver who drove the vehicle had an appropriate licence to drive the vehicle. 9. Now, coming to the facts of this case - notwithstanding the contention raised by the appellant that the accident occurred due to the negligence of the autorickshaw driver, he did not adduce any evidence to substantiate the contention. On the contrary, the first respondent/claimant maintained that the accident occurred only on account of the negligence of the second respondent trekker driver. 10. True, he did not adduce any oral evidence. But, he produced Exts.A1 to A8 and Ext.A4 is the police charge sheet. It is not disputed that somebody other than the second respondent was charge sheeted and tried. Ext.A4 is the document which enjoys presumptions as to the regularity of the investigation conducted by the police. In the teeth of Ext.A4, if the appellant had a contention _**M.A.C.A No.1023 of 2008**_ -:6:that the person actually responsible for the accident, whole or in part, was the autorickshaw driver, he should have taken steps. Having not taken any such steps to prove that, it is too late for the appellant to contend that opportunity should be given to him for impleading the autorickshaw driver. As already indicated, the first respondent/ claimant is _dominus litus_ and she did not have a case that the negligence was that of the autorickshaw driver. This explains why she preferred to implead only the appellant and the second respondent as parties. 11. Even though Mr. Ramachandran argued that the total compensation of Rs.45,000/- presently awarded by the learned Tribunal is excessive, having seen the nature of the injuries sustained by the claimant, we are of the view that the amount presently awarded is not excessive. 12. However, we make it clear that this judgment confirming the award of the Tribunal will not stand in the way of the appellant initiating separate proceedings before appropriate forum against the ## _**M.A.C.A No.1023 of 2008**_ -:7:- owner and driver of the autorickshaw for contribution. If the appellant institutes a suit in that regard within one month from today, the court which onus to consider that suit will exclude the period during the institution of the O.P. was pending before the Tribunal and till the date of filing of the suit from the reckoning for the purpose of limitation invoking Section 14 of the Limitation Act. sd/- **PIUS C. KURIAKOSE JUDGE** sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj