MACA Nos. 509/2009 & 551/2009 (Motor Accident Claims Appeal) — High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944** **MACA NO. 551 OF 2009** **AGAINST THE COMMON AWARD IN OPMV 1719/2003 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANTS/RESPONDENTS 2 & 4 IN O.P(M.V)1719/2003:** - 1 PRASAD, S/O.KUTTAPPAN, KILIYAMTHADATHIL HOUSE, ONAKKOOR P.O., ONAKKOOR - 2 M.A.VIJAYAKUMAR MANAPPATTEL HOUSE PAMPAKUDA, PIRAVOM (VIA), ERNAKULAM. BY ADV SRI.P.P.JACOB ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 IN** ## **O.P(M.V)1719/03:** - 1 N.P.GOPI, S/O.PENGAN, NIRAPPATHU HOUSE, THURUTHIKKARA, KAPPIKUNNUMALA BHAGAM, MULANTHURUTHY. - 2 SANTHA W/O.GOPI AGED 46 YEARS, NIRAPPATHU HOUSE, THURUTHIKKARA,KAPPIKUNNUMALA BHAGAM, MULANTHURUTHY. - 3 BINDU D/O.GOPI AGED 20 YEARS, NIRAPPATHU HOUSE, THURUTHIKKARA, KAPPIKUNNUMALA BHAGAM,MULANTHURUTHY. - 4 BIJU S/O.GOPI AGED 28 YEARS, NIRAPPATHU HOUSE, THURUTHIKKARA,KAPPIKUNNUMALA BHAGAM, MULANTHURUTHY. - 5 N.K.RAMAN KARTHA NJALLOOR KOTTA, RAYAMANGALAM P.O., KURUPPUMPADY. - 6 THE NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA. BY ADV SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2023, ALONG WITH MACA.509/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.509 and 551 of 2009 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944** **MACA NO. 509 OF 2009** **AGAINST THE COMMON AWARD IN OPMV 1717/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANTS/RESPONDENTS 2 & 4 IN O.P(M.V) 1717/03:** 1 PRASAD, S/O.KUTTAPPAN, KILIYAMTHADATHIL HOUSE, ONAKKOOR PO, ONAKKOOR. 2 M.A.VIJAYAKUMAR, MANAPPATTEL HOUSE PAMPAKUDA, PIRAVOM VIA, ERNAKULAM. BY ADV SRI.P.P.JACOB ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 3 IN** ## **O.P(M.V).1717/03:** 1 BIJU.N.P.& 2 OTHERS NIRAPPATHU HOUSE, THURUTHIKKARA,, KAPPIKUNNUMALA BHAGAM. 2 N.K.RAMAN KARTHA NJALLOOR KOTTA RAYAMANGALAM PO, KURUPPUMPADY. 3 ***** NATIONAL INSURANCE CO.LTD STATUE JUNCTION, TRIPUNITHURA, ERNAKULAM (CORRECTED) THE NAME OF THE THIRD RESPONDENT IS CORRECTED AS: TEH NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA VIDE ORDER DTD 18.03.2009 IN I.A.751/09 BY ADV SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2023, ALONG WITH MACA.551/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.509 and 551 of 2009 3 **C.JAYACHANDRAN, J -------------------M.A.C.A.Nos.509 and 551 of 2009 ----------------------Dated this the 17[th] day of February, 2023** ## **J U D G M E N T** The above appeals are carried from a common award passed by the Motor Accident Claims Tribunal, Muvattupuzha in O.P.(M.V).No.1717/2003 and O.P. (M.V).No.1719/2003. M.A.C.A.No.509/2009 is directed against the award in O.P.(M.V).No.1717/2003 and M.A.C.A.No.551/2009, against O.P.(M.V).No.1719/2003. Both these appeals are preferred by the registered owner and the defacto owner in the O.Ps above referred. The common ground of attack is that the Tribunal, having found the compensation amount payable to the claimants, have permitted the same to be recovered from the registered owner, defacto owner and the driver of the offending vehicle, a motor cycle, only for the reason that three persons were travelling in the motor vehicle. 4 M.A.C.A.Nos.509 and 551 of 2009 **2.** Heard Sri.P.P.Jacob, learned counsel for the appellants in both the appeals, Sri.Rajan Kalliyath who appears for the contesting respondents/insurance company in M.A.C.A.No.509/2009 and Sri.P.G.Ganappan, learned counsel for the contesting respondents/insurance company in M.A.C.A.No.551/2009. Perused the records. **3.** Learned counsel for the appellants contended that a violation per se of the Motor Vehicles Act, in the context of three persons travelling in a motor vehicle, will not automatically imply the breach of a policy condition. It may, at best, attract the penalty contemplated by the Stature for the violation of law. Therefore, the direction made by the Tribunal in the impugned award enabling recovery of the amount from the owners and the driver is illegal. Learned counsel relied upon the judgment of the Honourable Supreme Court in **Mohammed** **Siddique and Another v. National Insurance Company** M.A.C.A.Nos.509 and 551 of 2009 5 **Limited and Others** [(2020)3 SCC 57] **.** Per contra, learned counsel for the contesting respondents submitted that, in as much as there is reference in the policy of the number of passengers being two, there is clear violation of the policy condition. A Division Bench decision of this Court in **National** **Insurance Co. Ltd. v. Ammini Amma** [2013(4) KLT 676], is also relied upon to point out that the existence of a chargesheet against the owner of the vehicle in permitting the vehicle to be driven without a valid driving license would establish the contumacious conduct on the part of the owner, amounting to breach of policy condition. Sri.Ganappan also pointed out that the very fact that three persons were travelling in the offending vehicle itself would establish that the same had contributed to the accident. **4.** Having heard learned counsel appearing on both sides, this Court is not in a position to accept the M.A.C.A.Nos.509 and 551 of 2009 6 contentions raised on behalf of the contesting respondents. This Court finds that the factual premise as occurring in this case is squarely in the teeth of the judgment of this Court in **Mohammed Siddique** (supra) **.** In that case, the High Court found contributory negligence on the part of the claimant/injured, for the reason that as many as three persons were travelling in the motor cycle, which was hit by an offending vehicle, a car, from behind. The High Court found that the fact that a motor vehicle meant for only two persons to ride, carrying, besides the driver, two persons on the pillion would undoubtedly would add to the imbalance, a finding similar to the contention canvassed by the learned counsel, Sri.Ganappan, in the instant case. However, the Supreme Court frowned upon such finding of the High Court with the following observations: “But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the M.A.C.A.Nos.509 and 551 of 2009 7 driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most, it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194-C, inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim.” M.A.C.A.Nos.509 and 551 of 2009 8 **5.** It is therefore clear that, on account of the mere fact that, as many as three persons were travelling in a motor cycle, which was meant was for only two, negligence, be it contributory or otherwise, cannot be inferred, without establishing the casual connection between the violation concerned under the M.V. Act and the accident. True, as pointed out by Sri.Rajan Kalliyath, that the Supreme Court was dealing with a case of contributory negligence, whereas, the point canvassed by the insurance company in the instant case is one of breach of policy condition. However, this Court finds that, if negligence cannot be attributed on account of the mere fact that three persons were travelling in the offending motor vehicle, even for the purpose of finding contributory negligence, the said fact, by itself, is thoroughly insufficient to find a larger statutory breach, in the context of breach of policy conditions. Moreover, it needs to be established 9 ## M.A.C.A.Nos.509 and 551 of 2009 that a mere breach of policy condition may not exonerate an insurance company from honouring the claim. The requirements of law is that the breach alleged should be so fundamental, so as to have contributed to cause the accident, which is also not satisfied in the given facts and circumstances and in the light of the evidence adduced. It is not any and every technical breach of the policy condition that would entail complete exoneration of the liability for the insurance company. **6.** In view of the authoritative pronouncement by the Supreme Court in **Mohammed Siddique** (supra), this Court is not in a position to appreciate the Division Bench judgment of this Court in **Ammini Amma** supra. That apart, even though the Division Bench judgment to be made applicable, there is no corresponding charge under Section 128 of the Motor Vehicles Act, as is decipherable from Ext.A4 charge sheet. M.A.C.A.Nos.509 and 551 of 2009 10 In such circumstances, these appeals succeed and the direction of the Tribunal enabling recovery of the amount from the appellants by the insurance company cannot be sustained. The said direction is hereby done away with. In all other respects, the common award will stand confirmed. **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/