MACA.No. 967 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 3RD DAY OF APRIL 2014/13TH CHAITHRA, 1936** **MACA.No. 967 of 2012** **------------------------** **AGAINST THE AWARD IN OPMV 762/2008 of THE MOTOR ACIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 24.2.2012** ## **APPELLANT/2ND RESPONDENT IN O.P.(M.V.):** **THE MANAGER THE NEW INDIA ASSURANCE CO.LTD., MAIN ROAD IRINJALAKUDA** **REPRESENTED BY THE DULY CONSTITUTED ATTORNEY (M.G.RAMACHANDRAN NAIR), REGIONAL OFFICE KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682011.** ## **BY ADV. SRI.M.JACOB MURICKAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS :** ## **1. P.G.JAYAPALAN** **S/O. GOPALAN, PANIKKAMPARAMBIL HOUSE NEAR S.N.D.P. TEMPLE, PONJANAM P.O., KATTOOR VILLAGE THRISSUR DISTRICT, PIN-680702.** ## **2. ANTU** **S/O. DEVASSY, AKKARAKARAN HOUSE, EAST KOMBARA IRINJALAKUDA P.O., THRISSUR DISTRICT, PIN-680121.** ## **3. SELMA K.A.** **W/O. HAIDER, PULIKKAL HOUSE, P.O.PALAPPILLI THRISSUR DISTRICT, PIN-680304.** **R1 BY ADV. SRI.V.BINOY RAM R3 BY ADV. SRI.K.N.PADMAKUMAR R3 BY ADV. SRI.G.SANTHOSH KUMAR (P).** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = M.A.C.A. No. 967 of 2012 = = = = = = = = = = = = = = = = = = = Dated this the 3[rd] day of April, 2014** ## **JUDGMENT** The first respondent had sustained injuries in a motor accident that occurred on 15.6.2008 involving a pick up van driven and owned by the second respondent and insured with the appellant. He had filed a petition claiming compensation on account of the injuries sustained in the accident before the Motor Accidents Claims Tribunal, Irinjalakuda. The learned Tribunal, after considering the matter, found that the accident had occurred due to the negligence of the second respondent and awarded a total compensation of `20,473/- under various heads. The Tribunal directed the appellant to deposit the amount with interest at the rate of 7.5% per annum from the date of petition till realisation. The contention of the appellant MACA 967/2012 2 that they were not liable to indemnify the insured, the second respondent, as he was not holding a valid driving licence and a badge for driving the goods vehicle involved in the accident was not considered by the Tribunal and hence, no finding was entered in that respect by the Tribunal. Aggrieved by that, the appellant has filed this appeal. 2. Heard the learned counsel appearing for the appellant, learned counsel appearing for the first respondent and the learned counsel appearing for the third respondent. No representation for the second respondent. 3. Learned counsel for the appellant submits that the appellant is not disputing the quantum of compensation awarded by the Tribunal. Their grievance is that they had raised a specific contention in their written statement filed before the Tribunal that the second respondent was not holding a valid driving licence or a badge for driving the goods vehicle involved in the accident. In fact, in order to MACA 967/2012 3 substantiate that contention, the appellant had produced Ext.B2 copy of the Final Report in the criminal case which shows that the second respondent was not holding a valid driving licence and a badge. Ext.A7 is a copy of the driving licence of the second respondent which also shows that he was not holding a driving licence and a badge at the time of accident. Therefore, the appellant Insurance Company is not liable to indemnify the insured in this case. The Tribunal had not considered these aspects while passing the award. Therefore, not even a direction to recover the amount directed to be paid by the appellant to the claimant, from the second respondent was also not considered by the Tribunal. Therefore, in the light of these facts, he prays for exonerating the Insurance Company or, at least, allow them to recover the amount paid to the claimant from the second respondent. 4. Learned counsel for the third respondent submits that absence of badge for a driver of the goods vehicle is no MACA 967/2012 4 ground for exonerating the Insurance Company or to grant them permission to recover the amount from the insured. 5. Ext.A7 copy of the driving licence of the second respondent shows that the second respondent was holding a driving licence to drive a three wheeler at the time of accident. But, he was not holding a badge enabling him to drive a goods vehicle. Ext.B2 copy of the Final Report also shows that the second respondent was not holding a badge at the time of accident and not the driving licence. In the light of Ext.A7 and Ext.B2, it can be found that the second respondent was not holding a badge for driving a goods vehicle at the time of accident. 6. Whether the absence of a badge can be a valid ground for avoiding liability by the Insurance Company or whether it entitles the Insurance Company to claim recovery from the insured after paying the compensation to the claimant ? The consequence of absence of a badge had been considered by this Court in **Kuruvilla v. Jijo Joseph** (2013(4) MACA 967/2012 5 KLT 700). This Court held in paragraph 38 of this judgment as follows :- “38. Now I shall revert to the facts of the cases involved in these appeals. Except in M.A.C.A. No.1722 of 2012, the finding entered by the Tribunals concerned is only regarding want of badge/authorisation for the driver to drive the transport/goods vehicle involved. There is also no finding that the absence of such badge/authorisation in any way contributed to the cause of the accident. Hence, the breach cannot be said to be fundamental as well. Hence in the light of what I have stated above, that by itself cannot exonerate the insurance company from its liability to the third parties (claimants) or, give it a right of recovery of the amount from the insured. The insurers are bound to indemnify the insured. Hence in all the appeals other than in M.A.C.A. No.1722 of 2012, contention of the insurance companies either that it is not liable, or that it is entitled to recover the amount of compensation from the insured on payment of the same to the claimants cannot be accepted.” Therefore, in the light of this ruling, unless the Insurance Company is able to prove that absence of badge has contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured. In the case on hand, there is no finding that the absence of badge for the driver MACA 967/2012 6 had contributed to the cause of the accident. Moreover, the appellant had not even made an attempt to prove that the absence of badge had contributed to the cause of the accident. Therefore, they are liable to indemnify the insured and to pay the compensation to the claimant. Hence, the appellant's prayer for exonerating them from liability or to allow them to recover the amount from the second respondent is rejected and the appeal is dismissed. **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S.to Judge MACA 967/2012 7