Aravindakshan v. Abdul Rehiman and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** # **FRIDAY, THE 4[TH] DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943 MACA NO.2819 OF 2017** **AGAINST THE AWARD DATED 03.05.2014 IN O.P.(MV) NO.688/2010 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD. APPELLANT:** **ARAVINDAKSHAN, AGED 57 YEARS, S/O. LATE NARAYANAN, R/AT CHERUKARA HOUSE, THEKKIL P.O., KASARAGOD TALUK & DISTRICT, PIN-671 541.** **BY ADV SRI.S.JIJI** ## **RESPONDENTS:** |**1**|**ABDUL REHIMAN,**| |---|---| ||**AGED 56 YEARS,S/O.A.KHADER,**| ||**AVIKKARA HOUSE,**| ||**KOLAVAYAL POST, KANHANGAD,**| ||**HOISDURG TALUK, KASARAGOD-671 531.**| |**2**|**SUBAIDA K.,**| ||**AGED 45 YEARS, W/O.ABDUL REHIMAN,**| ||**AVIKKARA HOUSE,**| ||**KOLAVAYAL POST,KANHANGAD,**| ||**HOSDURG TALUK, KASARAGOD-671 531.**| |**3**|**M. KRISHNARAJ,**| ||**AGED 31 YEARS,S/O. NARAYANAN,**| ||**MUNGATH HOUSE,**| ||**KUTHIRAKKODE, PANAYAL POST,**| ||**HOISURG TALUK, KASARAGOD-671 531.**| |**4**|**THE BRANCH MANAGER,**| ||**UNITED INDIA INSURANCE CO. LTD.,**| ||**PADMAVATHI COMMERCIAL COMPLEX,**| ||**P.B NO. 19,M.G ROAD,**| ||**KASARAGOD DISTRICT-671 121.**| **MACA NO.2819 OF 2017** -2- **5 SREENESH P.S., AGED 33 YEARS, S/O.LATE SREEDHARAN, PATHIRAVALAPPIL, PUNCHA, MALOM, DARGHAS P.O.,KASARAGOD** **6 A.R. BALAN, AGED 52 YEARS, S/O. RAMAKRISHNAN, ASARIKUDY, KOOMPANANPARA P.O, ADIMALY, IDUKKI DISTRICT-685 561.** **7 THE BRANCH MANAGER, ORIENTAL INSURANCE CXO LTD., T.H TOWER,P.B NO. 1390/7A, STADIUM ROAD, MUVATTUPUZHA-686 661.** **BY ADVS. SRI.AGINOV MATHAPPAN SRI.VPK.PANICKER SMT.K.SHERIN MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.2819 OF 2017** -3- ## **C.S. DIAS, J. ----------------------------------------------------MACA No.2819 of 2017** ## **----------------------------------------------------Dated this the 4[th] day of February, 2022** ## **JUDGMENT** The appellant was the second respondent in O.P. (MV) No.688 of 2010 on the file of the Motor Accidents Claims Tribunal, Kasaragod. The respondents 1 and 2 in the appeal were the petitioners and the respondents 3 to 7 were the respondents 1 and 3 to 6 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Rashid A. (deceased) – the son of the petitioners. They have averred in the claim petition that, on 07.09.2007, while the deceased was to his house on a returning motorcycle from Kasaragod, the offending motorcycle ## **MACA NO.2819 OF 2017** -4- bearing registration No.KL-14/E-7749, driven by the first respondent in a rash and negligent manner, hit the motorcycle of the deceased. In the meantime, a lorry bearing registration No.KL-6/A-6658, driven by the fourth respondent in a rash and negligent manner ran over the body of the deceased. The deceased was a graduate and was a street vendor. The petitioners are dependents on him. Hence, they claimed a compensation of Rs.8,00,000/- from the respondents. 3. The second respondent has filed a written statement contending that he was not the owner of the offending motorcycle. He has also stated that the compensation claimed was excessive. Further, he has stated that, as the motorcycle was insured with the third respondent, it is the third respondent who is liable to pay the compensation amount. 4. The third respondent has filed a written statement admitting that the offending motorcycle had **MACA NO.2819 OF 2017** -5- a valid insurance coverage. However, it is stated that the first respondent who rode the motorcycle, did not have a valid driving licence. Hence, the second respondent has violated the insurance policy conditions. Therefore, the third respondent may be exonerated. 5. The sixth respondent has filed a written statement admitting that the lorry had a valid insurance coverage. They have contended that, as A and B charge sheets were laid as against the drivers of both the vehicles, the compensation has to be equally paid by them. 6. The petitioners have produced and marked Exts.A1 to A4 in evidence. The third respondent has produced the insurance policy, which was marked as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, has allowed the claim petition **MACA NO.2819 OF 2017** -6- in part, by permitting the petitioners to recover from the respondents 3 and 6 an amount of Rs.9,02,500/with interest and cost in equal shares. But, on the finding that there was violation of the insurance policy conditions, the third respondent was permitted to recover the compensation amount from the second respondent. 8. Aggrieved by the direction in the impugned award, permitting the third respondent to recover the compensation amount from the second respondent, the second respondent is in appeal. 9. Heard; Sri. Jiji S., the learned counsel appearing for the appellant/second respondent, Smt. K. Sherin Mohan and Sri. V.P.K. Panicker, the learned counsel appearing for the respondents 4 and 7 - insurers of the two vehicles, respectively, on admission of the appeal. 10. The principle grounds of challenge in the **MACA NO.2819 OF 2017** -7- memorandum of appeal are:- (i) The directions in the impugned award permitting the third respondent to recover the compensation amount from the appellant/second respondent is erroneous and wrong. (ii) The Tribunal has gone wrong in holding that the second respondent was the owner of the vehicle, since he has already sold the vehicle. (iii) The Tribunal has gone wrong in attributing contributory negligence against the first respondent. ## Ground No.(i) 11. Ext.A2 charge sheet laid by the Bekal Police in Crime No.319 of 2009 proves that the first respondent was charged for the offences punishable under Sections 279 and 338 of the Indian Penal Code and Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988. Therefore, as per Ext.A2, the first **MACA NO.2819 OF 2017** -8- respondent did not possess an effective driving licence as on the date of accident. Despite the said charge and the specific contention taken by the third respondent in the written statement, the respondents 1 and 2 did not bother to produce the driving licence of the first respondent or let in any evidence to discredit Ext.A2. Hence, I do not find any error or illegality in finding of the Tribunal, that the appellant/second respondent had violated the insurance policy conditions, since the first respondent did not hold a driving licence as on the date of accident. 12. A larger Bench of this Court in **Oriental Insurance Co. Ltd. v. Paulose** [2015 (1) KLT 682] has held that, driving of a vehicle without an effective driving licence is a fundamental breach of insurance policy conditions. Thus, I confirm the finding of recovery against the appellant and hold Ground No.(i) against him. **MACA NO.2819 OF 2017** -9- ## Ground No.(ii) 13. Even though the appellant had taken a contention that he was not the actual owner of the vehicle, he has not produced any material or let in any evidence to substantiate his bald assertion. 14. Going by Ext.A2 charge sheet and Ext.B1 insurance policy, it is on record that it was the appellant who was registered owner of the motorcycle bearing registration No.KL-14/E-7749. Thus, his mere plea denying ownership is insufficient. Hence, I find Ground No.(ii) also against the appellant. Ground No.(iii) 15. As per Exts.A2 and A3 charge sheets, the police have found that the drivers of the offending motorcycle and the lorry were negligent in causing the accident. 16. The respondents have not let in any evidence to discredit Exts.A2 and A3 charge sheets as laid down **MACA NO.2819 OF 2017** -10- by this Court in **New Insurance Assurance Co. Ltd.** **v. Pazhaniammal** [2011 (3) KLT 648]. Hence, I do not find any error in the Tribunal placing reliance on Exts.A2 and A3 charge sheets to attribute and find negligence on the drivers of the two vehicles. In the above circumstances, I hold Ground No.(iii) also against the appellant. 17. On an appreciation of the impugned award, I do not find any error or illegality committed by the Tribunal, by permitting the fourth respondent/third respondent insurer to pay the compensation amount and recover it from the appellant. The appeal is devoid of merits and is dismissed. In the facts and circumstances of the case, the parties shall bear their respective costs. Sd/- **C.S. DIAS JUDGE** bpr