Jijo Varghese v. Jobin P. Jose and Anu Martin and United India Insurance Company Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937 MACA.No. 3405 of 2015 () ------------------------- AGAINST THE AWARD IN OPMV 52/2012 of MACT MUVATTUPUZHA DATED 15-06-2015 ## APPELLANT/2ND RESPONDENT: ------------------------------------------------------ JIJO VARGHESE AGED 51 YEARS S/O.VARGHESE, MAJIYATTU HOUSE, CHELAD P.O PINDIMANA VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS/PETITIONER/RESPONDENTS 1 & 3: ------------------------------------------------------------------------------------ ## 1. JOBIN.P.JOSE, S.O.JOSE PARANKAMALIL HOUSE, VADATTUPARA, KUTTAMPUZHA VILLAGE (VIA) KOTHAMANGALAM, ERNAKULAM DISTRICT - 686 691. ## 2. ANU MARTIN S/O.MARTIN, PALLIPPADAN HOUSE, AYAKKADU KARA THRIKKARIYUR VILLAGE, KOTHAMANGALAM - 686 691 ERNAKULAM DISTRICT. ## 3. UNITED INDIA INSURANCE COMPANY LTD MUVATTUPUZHA BRANCH, MUVATTUPUZHA PO - 686 661 ERNAKULAM DISTRICT. R1 BY ADVS. SMT.MABLE.C.KURIAN SRI.ABLE C.KURIAN R2 BY ADV. SRI.T.K.KOSHY R3 BY ADV.SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** ## **--------------------------------------M.A.C.A.No.3405 of 2015** **--------------------------------------------------Dated this the 26[th] day of February, 2016.** ## **J U D G M E N T** ## Anil K.Narendran, J. The appellant is the 2[nd] respondent in O.P.(MV) No.52 of 2012 on the file of the Motor Accidents Claim Tribunal, Muvattupuzha, an application filed by the 1[st] respondent herein under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by him in a motor accident occurred on 05.02.2011. 2. Going by the averments in the claim petition, on the date of accident, the claimant (the 1[st] respondent herein) was riding a motor cycle bearing registration No.KL-44/1435. When the motor cycle reached the place of accident, another motor cycle bearing registration No.KL-44/A-861 owned by the appellant herein and ridden by the 2[nd] respondent herein, came in the opposite direction and hit the motor cycle in which the 1[st] respondent was the rider. As a result of the accident, the 1[st] respondent sustained serious injuries. Alleging that the accident occurred due to the rash and negligent riding of motor cycle No.KL-44/A-861 by the 2[nd] respondent, claim petition was filed before the Tribunal claiming compensation. The 3[rd] respondent herein is the insurer of motor cycle No.KL-44/A-861. M.A.C.A.No.3405 of 2015 2 3. Before the Tribunal, the appellant filed written statement admitting the ownership of motor cycle No.KL-44/A-861. However, he contended that, at the time of accident the 2[nd] respondent Anu Martin was riding the said motor cycle without any authority or permission. On the date of accident, the appellant's son Nithin Varkey Jijo, who was a Plus-Two student, took the motor cycle to his school. It was the last working day for Plus-Two students and they were also having a farewell party at school. The appellant's son is holding Driving Licence No.44/3612/2010. Albin Jose, the brother of the 1[st] respondent Jobin P. Jose, was a classmate of the appellant's son. Albin Jose is also holding a valid driving licence to ride motor cycle. Albin Jose took the motor cycle with the permission of the appellant’s son for purchasing some items from Kothamangalam Town. Albin Jose, after collecting motor cycle No.KL-44/A-861 from the appellant's son, entrusted the same to the 2[nd] respondent Anu Martin, who did not have any valid driving licence. According to the appellant, Albin Jose entrusted the motor cycle to the 2[nd] respondent Anu Martin without the knowledge or permission from the appellant, who is the registered owner of the said motor cycle, or that of his son. The use of motor cycle by Anu Martin is a mischief, which he committed on account of the illegal act of Albin Jose in entrusting the motor cycle to him without the consent or knowledge of the appellant or his son. Therefore, the appellant cannot M.A.C.A.No.3405 of 2015 3 be called upon to pay the compensation claimed by the 1[st] respondent Jobin P. Jose. The appellant also contended that, the compensation claimed under various heads are too excessive and without any legal basis. 4. The 3[rd] respondent insurer filed written statement contending that, motor cycle bearing No.KL-44/A-861 was covered by an insurance policy, which was valid for the period from 18.01.2011 to 17.01.2012. The 3[rd] respondent contended that the accident occurred due to the negligence of the 2[nd] respondent Anu Martin, who was only a minor at the time of accident, who hold no valid driving licence to ride a motor cycle. As such, there is violation of Ext.B1 policy conditions by the appellant insured and the insurer is not liable to indemnify the insured. The 3[rd] respondent insurer has also pointed out that, as borne out from Ext.A5 final report, an offence punishable under Section 3(1), read with Section 181 of the Motor Vehicles Act was also charged against the 2[nd] respondent Anu Martin for riding the motor cycle without any valid licence. 5. Before the Tribunal Exts.A1 to A11 were marked on the side of the claimant. The claimant was examined as PW1. On the side of the respondents, Exts.B1 to B4 were marked. The appellant herein was examined as RW1. The appellant's son Nithin Varkey Jijo and his classmate Bobin Baby were examined as RWs.2 and 3. M.A.C.A.No.3405 of 2015 4 6. After considering the pleadings and materials on record, the Tribunal came to the conclusion that the 2[nd] respondent Anu Martin was admittedly having no valid driving licence at the time of accident. Even though the appellant has a specific case that Anu Martin used the offending vehicle without his knowledge or consent, he cannot escape from the liability consequent to the breach of Ext.B1 policy conditions. It was the duty of the appellant insured to keep the vehicle in safe custody and see that persons having no effective and valid licence are not using the said vehicle. Even if Anu Martin obtained the vehicle from Albin Jose, the brother of the 1[st] respondent Jobin P. Jose, as alleged by the appellant insured, then also he cannot escape from the liability for the breach of Ext.B1 policy conditions. Therefore, the Tribunal held that, in view of the violation of Ext.B1 policy conditions by the appellant insured, the 3[rd] respondent insurer is entitled to realise the award amount from the appellant and the 2[nd] respondent, the rider of the offending vehicle. Under different heads the Tribunal awarded a total compensation of 1,13,931/- to the 1₹ st respondent claimant and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest @8% per annum from the date of petition till realisation, with proportionate cost. In view of the finding regarding violation of Ext.B1 policy conditions, the Tribunal held that the 3[rd] respondent insurer is entitled to realise the aforesaid amount M.A.C.A.No.3405 of 2015 5 from the appellant insured and the 2[nd] respondent rider of the offending vehicle. 7. Aggrieved by the award passed by the Tribunal to the extent of exonerating the 3[rd] respondent insurer on the ground of violation of Ext.B1 policy conditions, the appellant insured is before this Court in this appeal. The appellant has also raised a contention that the compensation awarded by the Tribunal under different heads are on a higher side. 8. We heard the arguments of the learned counsel for the appellant. 9. The appellant is admittedly the registered owner of motor cycle No.KL-44/A-861 which was involved in the motor accident occurred on 5.2.2011, resulting injuries to the 1[st] respondent claimant, who was riding another motor cycle No.KL-44/1435. It is also not in dispute that the 2[nd] respondent, who was riding motor cycle No.KL44/A-861, was riding the motor cycle without any effective or valid driving licence. The specific stand taken by the 3[rd] respondent insurer before the Tribunal was that the 2[nd] respondent was only a minor at the time of accident. 10. Before the Tribunal the appellant contended that on the date of accident he had entrusted the motor cycle to his son Nithesh Varkey, who was a Plus-Two student holding valid driving licence. He M.A.C.A.No.3405 of 2015 6 took the motor cycle to his school, on the last working day for Plus-Two students, on which day they were having a farewell party. According to the appellant, one Albin Jose, the brother of the 1[st] respondent claimant, who was also a classmate of his son, took the motor cycle with the permission of his son for purchasing some items from Kothamangalam Town. The said Albin Jose entrusted the motor cycle to the 2[nd] respondent, who did not have any valid driving licence, and the accident occurred while the 2[nd] respondent was riding the motor cycle illegally, without the consent or knowledge of his son. Therefore, according to the appellant he cannot be called upon to pay the compensation claimed by the 1[st] respondent claimant. 11. In support of the aforesaid contention the appellant himself was examined as RW.1. His son Nithin Varkey Jijo was examined as RW.2 and one Bobin Baby, who is stated to be a classmate of the appellant's son, was examined as RW.3. The appellant as RW.1 deposed that he entrusted the motor cycle to his son for his journey to school on the date of accident. Subsequently, the 2[nd] respondent obtained the said motor cycle from Albin Jose, without the knowledge or consent of the appellant. The evidence of RWs.2 and 3 are also to the effect that the entrustment of the motor cycle by Albin Jose to the 2[nd] respondent was without ascertaining whether he was having a valid driving licence. M.A.C.A.No.3405 of 2015 7 12. Admittedly, the appellant is the registered owner of the offending motor cycle. He had entrusted the motor cycle to his son Nithin Varkey Jijo, who took the motor cycle to his school. Though the appellant would contend that Albin Jose took the motor cycle from his son Nithin Varkey Jijo and it is he who entrusted the same to the 2[nd] respondent, who was the rider of the motor cycle at the time of accident, other than the interested testimony of RWs.1 to 3, there is absolutely no evidence to substantiate the aforesaid contention. Further, Albin Jose, who alleged to have entrusted the motor cycle to the 2[nd] respondent was not examined before the Tribunal. Therefore, there is no reliable evidence to rule out the possibility of entrustment of the offending vehicle to the 2[nd] respondent by the appellant's son himself, especially when the 2[nd] respondent is not a stranger to the appellant or his son. 13. As we have already noticed, the specific contention raised by the 3[rd] respondent insurer is that, at the time of accident the 2[nd] respondent was only a minor and was not holding any valid driving licence to ride motor cycle. The aforesaid contention taken by the 3[rd] respondent insurer is also supported by Ext.A5 final report in which the 2[nd] respondent was charge sheeted for an offence punishable under Section 3(1) read with Section 181 of the Motor Vehicles Act. M.A.C.A.No.3405 of 2015 8 14. In exercise of the powers conferred by Section 118 of the Motor Vehicles Act, 1988, the Central Government made the Rules of the Road Regulations, 1989, which has come into force on 1.7.1989. Regulation 32(i) mandates that, a person driving a vehicle shall also carry with him the driving licence, certificate of registration, certificate of taxation and certificate of insurance of the vehicle and in the case of transport vehicle, the permit and fitness certificate also. It is, therefore, imperative on the part of every owner/driver to ensure that, the vehicle used on a public place is covered by a valid certificate of registration, certificate of taxation and certificate of insurance, and in the case of a transport vehicle, in addition to the above, the permit and fitness certificate. Further it has to be ensured that the driver/rider of the vehicle is having a valid and effective driving licence. In view of the mandate under Regulation 32(i) of the Rules of the Road Regulation, it was imperative on the part of the appellant, who is the registered owner of the offending motor cycle, and his son who obtained possession of the said vehicle from the appellant for his use (who had stepped into the shoes of the owner, as held by the Apex Court in **Ningamma and another v. United India Insurance Company [2009 (13) SCC 710]** ) to ensure that the said motor cycle is ridden by a person having valid and effective driving licence. Therefore, once it is found that the accident occurred while the motor cycle was ridden M.A.C.A.No.3405 of 2015 9 by a person who is not holding a valid and effective driving licence, in violation of the conditions of Ext.B1 policy, the appellant cannot be absolved from the liability to pay compensation to the injured. Therefore, the award passed by the Tribunal to the extent of absolving the 3[rd] respondent insurer from the liability to pay the compensation awarded to the 1[st] respondent claimant and permitting the said insurer to realise the award amount from the appellant and the 2[nd] respondent and their assets is perfectly legal, warranting no interference in this appeal. 15. The next contention raised by the appellant is that the compensation awarded by the Tribunal under different heads are on a higher side. 16. The fact that the 1[st] respondent claimant was studying for B.Tech course at the time of accident is not in dispute. Exts.A6 to A8 and A11 are the wound certificate, treatment certificates and discharge summary issued from MOSE Medical College, Kolenchery, where the claimant had undergone inpatient treatment. As borne out from the medical records referred to above, the claimant sustained tentorial SAH, bilateral maxilla fracture, nasal bone fracture, type 2 distal radius fracture. He had undergone inpatient treatment for a period of nine days. Considering the nature of injuries sustained, which includes multiple fractures and the treatment he had undergone the M.A.C.A.No.3405 of 2015 10 Tribunal awarded a sum of 30,000/- towards pain and suffering and₹ ₹25,000/- towards loss of amenities. The compensation awarded by the Tribunal under the above heads cannot be termed either exorbitant or arbitrary, warranting an interference in this appeal. Similarly 1,350/-₹ awarded by the Tribunal towards bystanders expenses, ₹1,000/towards extra nourishment and ₹1,500/towards transportation charges represents only just and reasonable compensation under those heads, which also requires no interference in this appeal. Similarly ₹55,081/- awarded by the Tribunal towards medical expenses, against Ext.A9 series of bills, represents just and reasonable compensation under that head, which also requires no interference in this appeal. The rate of interest awarded by the Tribunal at 8% is also not on a higher side. In that view of the matter, we find absolutely no grounds to interfere with the quantum of compensation awarded by the Tribunal. In the result, the appeal fails and the same is dismissed. **==> picture [24 x 11] intentionally omitted <==** ## **P.R.RAMACHANDRA MENON** **==> picture [349 x 13] intentionally omitted <==** ## Sd/- **ANIL K.NARENDRAN JUDGE** AV/skj True copy P.A to Judge