K. Aravindakshan S/o Narayanan Nair v. Branch Manager, New India Assurance Company Ltd

MACA NO. 3280 OF 2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 MACA NO. 3280 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 32/2009 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/S:** K.ARAVINDAKSHAN S/O.NARAYANAN NAIR, R/AT 4/288, KOTAVAYAL HOUSE,KUNDAMKUZHI P.O, BEDAKAM VILLAGE, KASARAGOD DISTRICT. BY ADV SRI.KODOTH SREEDHARAN ## **RESPONDENT/S:** 1 SARA, AGED 35 YEARS, W/O.LATE UMMER, R/AT SANTHOSH NAGAR,CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT671 121. DELETED 2 ABDUL USAMATH SHIBILI C.U. S/O.LATE UMMER, R/AT SANTHOSH NAGAR, CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT- 671 121. DELETED 3 FATHIMATH SHIFANA C.U. D/O.LATE UMMER, R/AT SANTHOSH NAGAR, CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT- 671 121. DELETED 4 MOHAMMED SHAMMAS C.U. AGED 16 YEARS, S/O.LATE UMMER, R/AT SANTHOSH NAGAR, CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT- 671 121,MINOR REP. BY MOTHER SARA. DELETED 5 SURESH KUMAR M. S/O.E.RAJASEKHARAN, EDAPANNY HOUSE, P.O.KUNDAMKUZHI,BEDADKA, CHENGALA VIA, KASARAGOD DISTRICT - 671 123. MACA NO. 3280 OF 2015 2 6 RAJASEKHARAN NAIR S/O.VASUDEVAN NAIR, NELLIYADUKKAM HOUSE, P.O.KUNDAMKUZHI, BEDADKA, CHENGALA VIA, KASARAGOD DISTRICT - 671 123. 7 THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD, GOKUL BUILDING, M.G.ROAD KASARAGOD DISTRICT - 671 121. 8 M.C.MOHAMMED, AGED 63 YEARS, S/O.LATE C.ABDULLA, R/AT BELKAD HOUSE, BERKACHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT-671 121. DELETED 9 ABDUL RAHIMAN, AGED 60 YEARS, S/O.LATE C.ABDULLA, R/AT BELKAD HOUSE, BERKA CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT-671 121. DELETED 10 MARIYAMMA, AGED 58 YEARS, D/O.LATE C.ABDULLA, W/O.LATE ABDUL RAHIMAN R/AT NEAR KUNNIL SCHOOL, NEW BEVINJE, P.O.THEKKIL FERRY, KASARGOD TALUK AND DISTRICT - 671 123. DELETED 11 AMOO, AGED 56 YEARS, S/O.LATE C.ABDULLA, R/AT BELKAD HOUSE, BERKA CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT-671 121. DELETED 12 NABEESA, AGED 54 YEARS, D/O.LATE C.ABDULLA, W/O.IBRAHIM, R/AT CHATTANCHAL THAIRE, THOTTUMBAI, THEKKIL VILLAGE AND POST KASARGOD TALUK AND DISTRICT - 671 121. DELETED 13 C. ASHRAF, AGED 52 YEARS, S/O.LATE C.ABDULLA, R/AT BELKAD HOUSE, BERKA CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT-671 121. DELETED 14 AYISHA, AGED 40 YEARS, S/O.LATE C.ABDULLA, W/O.ABDUL RAHIMAN,R/AT ALLAMA IQUBAL NAGAR, KETTUM KALLU, P.O.MULIYAR, KASARAGOD TALUK AND DISTRICT - 671 123. DELETED 15 C. MOIDU AGED 38 YEARS, S/O.LATE C.ABDULLA, R/AT INDIRA NAGAR,CHENGALA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT671 123. DELETED MACA NO. 3280 OF 2015 3 16 NASSAR DELETED AGED 36 YEARS, S/O.LATE C.ABDULLA, R/AT BEVINJE, THEKKIL FERRY, KASARGOD TALUK AND DISTRICT - 671 123. RESPONDENT NOS 1 TO 4 AND 8 TO 16 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF TEH APPELLAT AS PER ORDER DATED 30.11.2021 IN IA NO.1/2021. BY ADVS. P.V.ANOOP P.V.KUNHIKRISHNAN LAL K.JOSEPH KKM.SHERIF THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3280 OF 2015 4 ## **JUDGMENT** The appellant was the 3[rd] respondent in OP(MV) No.32/2009 on the file of the Motor Accidents Claims Tribunal, Kasaragod. The respondents 1 to 4 in the appeal were the petitioners 1 to 4 and respondents 5 to 7 were the respondents 1, 2 and 4 before the Tribunal. The respondents 8 to 16 in the appeal were the supplemental respondents 5 to 13 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Ummer (deceased), husband of the 1[st] petitioner, father of the petitioners 2 to 4 and son of the 5[th] petitioner. Pending the proceeding, the 5[th] petitioner expired and her legal representatives were impleaded as the supplemental respondents 5 to 13. It was the case of the petitioners that, on 09.06.2008, when the deceased was returning from a mosque near Santhosh Nager, a jeep bearing registration No.KL-14B1400 (jeep), driven by the 1[st] respondent in a rash and negligent manner, hit the deceased. The deceased sustained fatal injuries 5 MACA NO. 3280 OF 2015 and lost his life instantaneously. The deceased was a PWD contractor and earning a monthly income of Rs.15,000/-. The petitioners were the dependents of the deceased. The respondents 2 and 3 were the owners of the jeep and the 4[th] respondent was the insurer of the jeep. Hence, the petitioners claimed compensation from the respondents. 3. The respondents 1 to 3 did not contest the proceedings and were set ex-parte. 4. The 4[th] respondent - insurer had filed a written statement admitting that the jeep was covered by an 'Act Only' policy. But, it was contended that the 1[st] respondent did not hold an effective valid license and badge to drive the jeep. Therefore, the 4[th] respondent was not liable to indemnify the 2[nd] respondent - the registered owner of the jeep. Hence, the 4[th] respondent may be exonerated. 5. The respondents 5 to 13 - supplemental respondents – legal representatives of the deceased 5[th] petitioner also did not contest the proceedings and were set ex-parte. 6. The Tribunal, after analyzing the pleadings and the materials on record, allowed the claim petition by permitting the MACA NO. 3280 OF 2015 6 petitioners and respondents 5 to 13 to recover an amount of Rs.19,10,000/- with interest and cost from the 4[th] respondent, but the 4[th] respondent was granted the right to recover the compensation amount from the 3[rd] respondent, on the ground that the 1[st] respondent did not hold an effective driving license and a badge to drive the jeep. 7. Aggrieved by the direction of the Tribunal, permitting the 4[th] respondent to recover compensation amount from the 3[rd] respondent, the 3[rd] respondent is in appeal. 8. Heard; Sri.Kodoth Sreedharan, the learned counsel appearing for the appellant/3[rd] respondent, Sri. P.V. Anoop, the learned counsel appearing for the respondents 5 and 6 and Sri. Lal K. Jospeh, the learned counsel appearing for the 7[th] respondent/4[th] respondent-insurer. 9. The question that arises for consideration in the appeal is whether the direction of the Tribunal permitting the 7[th] respondent insurer (4[th] respondent before the Tribunal) to recover the compensation from the appellant is sustainable in law or not. 10. The definite case of the 7[th] respondent in the written MACA NO. 3280 OF 2015 7 statement filed before the Tribunal was that the 5[th] respondent/1[st] respondent driver did not hold a valid badge to drive the jeep. The 7[th] respondent insurer had produced the registration particulars of the jeep, which was marked as Ext.B3. The registration particulars show that the jeep had a gross weight of 1770 kilograms (kgs) and an unladen weight of 1230 kgs. 11. In **Mukund Dewangon vs. Oriental Insurance Company Limited** [2017 93) KLT 1000 (SC)], the Honourable Supreme Court has held that, if a light motor vehicle’s unladen weight and a transport vehicle's gross weight does not exceed 7500 kgs, the same would be treated as a light motor vehicle. 12. In the light of Ext.B3 registration particulars, it is proved that the jeep does not have a gross weight/unladen weight exceeding 7500 kgs. Therefore, there is no requirement in law, as laid down in **Mukund Dewangon** (supra), for a person to hold a badge/authorisation to drive a transport vehicle/light motor vehicle having gross weight/unladen weight of less than 7500 kgs. Consequentially, it is only to be held that, the contention of the 7[th] respondent that the appellant had violated MACA NO. 3280 OF 2015 8 the insurance policy conditions is untenable in law. As a corollary to the above declaration of law, the non-holding of the badge by the 5[th] respondent/driver is irrelevant and immaterial. Hence, the direction in the impugned award permitting the 7[th] respondent - insurer to recover the compensation amount from the appellant is unsustainable in law and the same is only liable to be set aside. In the result, the appeal is allowed. The direction in the impugned award in OP(MV) No.32/2009, permitting the 7[th] respondent/insurer to recover the compensation amount from the appellant/3[rd] respondent is set aside. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs. **Sd/-** **C.S.DIAS, JUDGE** rkc/30.11.21