M.A.C.A.No.639 of 2014(A)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940 MACA.No. 639 of 2014** **AGAINST AWARD DATED 16.07.2011 IN O.P.(MV) NO. 374/2005 OF MACT, NEYYATTINKARA** ## **APPELLANT/1ST RESPONDENT:-** **---------------------------** **THAJUDEEN,** **S/O.ABDUL KAREEM, THAJ BHAVAN, 7/366, KUDAPPANAMOODU P.O., VELLARADA.** **BY ADV.SRI.S.MOHAMMED AL RAFI** ## **RESPONDENTS/APPLICANTS & RESPONDENTS 2 & 3:-** **---------------------------------------------** ## **1. INDIRA,** **W/O.APPUKUTTAN ASSARI, PARALEKSHMI BHAVAN, NARANI, KUNNATHUKAL DESOM, THIRUVANANTHAPURAM - 695 124.** ## **2. VINU,** **S/O.APPUKUTTAN ASSARI, PARALEKSHMI BHAVAN, NARANI, KUNNATHUKAL DESOM, THIRUVANANTHAPURAM - 695 124.** ## **3. ABHILASH,** **S/O.APPUKUTTAN ASSARI, PARALEKSHMI BHAVAN, NARANI, KUNNATHUKAL DESOM, THIRUVANANTHAPURAM - 695 124.** ## **4. THE BRANCH MANAGER,** **NEW INDIA ASSURANCE CO. LTD., NEYYATTINKARA, TRIVANDRUM - 695 121.** ## **5. RAMANAN,** **S/O.PONNAYYAN, KARIMARAN COLONY, KARAMOODU, VELLARAD, TRIVANDRUM - 695 505.** **R4 BY ADV. SRI.RAJAN P.KALIYATH BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A. No.639 of 2014(A)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 13[th] day of June, 2018_ ## **J U D G M E N T** The appellant is the 1[st] respondent in O.P. (MV) No.374 of 2005 on the files of the Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal')_ , Neyyattinkara. He is aggrieved by the impugned award granting liberty to the 4[th] respondent to recover the compensation amount from the appellant. 2. The respondent Nos.1 to 3 filed the Original Petition, claiming compensation for the death of one 'Appukuttan Assari'. They are the legal representatives of the deceased 'Appukuttan Assari'. The accident has occurred on 07.10.2004 at 8.30 pm, when the motorcycle ridden by the said 'Appukuttan Assari' hit with the lorry owned by the appellant and driven by the 5[th] respondent herein. ## **M.A.C.A. No.639 of 2014(A)** ## **-: 2 :-** 3. After considering the evidence on record, the Tribunal passed the impugned award, granting compensation of `4,63,500/- with interest at the rate of 9% per annum and the 4[th] respondent was directed to satisfy the compensation amount. However, the 4[th] respondent was also permitted to execute the award against the appellant for realisation of the above amount, on a finding that the the 5[th] respondent herein the driver of the offending lorry was not having a valid driving licence at the time of accident and there was a violation of policy condition. Aggrieved by the reservation clause made in favour of the Insurance Company and against the appellant, the appellant has preferred Interlocutory Application Nos.6330 and 6331 of 2011 in the said Original Petition to review the findings, whereby a reservation clause was made **M.A.C.A. No.639 of 2014(A)** ## **-: 3 :-** in favour of the Insurance Company to recover the compensation amount from the appellant, being the owner of the offending vehicle. The aforesaid application was filed with Interlocutory Application No.6331 of 2011 to condone the delay in filing the review petition. According to the appellant, there was an error apparent on the face of the record in examining the validity of the driving licence of the 4[th] respondent. After considering the grounds raised in the review petition, the Tribunal dismissed both applications on a finding that there is no reason to condone delay and there was no error apparent on the face of the record. This appeal has been filed mainly on the ground that there is an error apparent on the face of the record in evaluating the validity of the driving licence. 4. Heard the learned counsel for the appellant **M.A.C.A. No.639 of 2014(A)** ## **-: 4 :-** and the learned counsel for the respondent Insurance Company. 5. In view of the arguments raised at the Bar, the point to be considered is, whether the Tribunal is justified in reserving realisation clause in favour of the Insurance Company to realise compensation amount from the appellant? Is there any error apparent on the face of the record in evaluating the validity period of the driving licence owned by the 5[th] respondent herein? Admittedly, the date of accident is 07.10.2004. In order to prove the case that the 5[th] respondent was holding a valid driving licence at the time of accident, the appellant has produced Ext.B1 the photocopy of driving licence. Being a photocopy, _prima facie_ it is not admissible in evidence. But, let us examine the validity of driving licence also. **M.A.C.A. No.639 of 2014(A)** ## **-: 5 :-** Ext.B1 shows the renewal of licence during two different periods. The first page shows the renewal of licence from 25.03.2009 to 24.03.2012 and the 5[th] respondent was licensed to drive light motor vehicles through out India. The second page shows the renewal of driving licence from 06.07.2004 to 05.07.2007. The second page is the relevant page covering the date of accident. 6. Going by the impugned award, it is seen that in Issue No.(3) the Tribunal has arrived at a finding that the 5[th] respondent was authorised to drive transport vehicle only with effect from 25.03.2009 and it does not cover the relevant date i.e., 07.10.2004. Aggrieved by the aforesaid finding, the appellant had preferred review petition as I.A. No.6331 of 2011 on the ground that the aforesaid findings are error apparent on the face of ## **M.A.C.A. No.639 of 2014(A)** ## **-: 6 :-** the record and Ext.B1 also would show that the licence was renewed from 06.07.2004 to 05.07.2007 covering 07.10.2004, the date on which the accident has occurred. The said I.A. was filed with I.A. No.6330 of 2011 to condone the delay of 94 days in filing I.A. No.6331 of 2011. The Tribunal dismissed both petitions on a finding that there is no sufficient cause to condone delay and there is no error apparent on the face of the record, as Ext.B1 does not cover the date of accident i.e., 07.10.2004. 7. It is true that the Tribunal has not considered the second page of Ext.B1, wherein the licence is seen renewed for a period from 06.07.2004 to 05.07.2007. The learned counsel for the appellant drew my attention to the second page of Ext.B1 and highlighted the point that licence was **M.A.C.A. No.639 of 2014(A)** ## **-: 7 :-** renewed from 06.07.2004 to 05.07.2007 and thereby the accident occurred on 07.10.2004 stands covered. In view of the above submission, I have meticulously examined the second page of Ext.B1. In second page of Ext.B1, it is stated that licence to drive motor vehicles other than transport vehicle is hereby renewed from 06.07.2004 to 05.07.2007. Thus, it can be held that on the date of accident the appellant had a licence to drive the motor vehicle other than transport vehicle on the date of accident. 8. Then, the next question to be considered is, what is the category of vehicle, which was involved in the accident and driven by the 5[th] respondent? It is not disputed that Ext.B2 shows that the vehicle involved in the accident, which was driven by the 5[th] respondent was a goods carrying commercial vehicle. It is needless to say, as per ## **M.A.C.A. No.639 of 2014(A)** ## **-: 8 :-** the renewed licence having validity from 06.07.2004 to 05.07.2007, the appellant has no licence to drive a transport vehicle. According to Section 2(47) of the definition clause of the Motor Vehicles Act, 1988 _(hereinafter referred to as 'the M.V. Act')_ “transport vehicle” means a pubic service vehicle, a goods carriage, an educational institution bus or a private service vehicle. In the instant case, admittedly the disputed vehicle is a goods carriage vehicle. If it is a goods carriage vehicle, the vehicle would fall under the category of transport vehicle contemplated under Section 2(47) of the M.V. Act. If that be so, on the date of accident, i.e., 07.10.2004, the 5[th] respondent had no valid licence to drive the offending lorry and he had driven the lorry in violation of the policy condition. 9. The learned counsel for the appellant cited ## **M.A.C.A. No.639 of 2014(A)** ## **-: 9 :-** the decision reported in _**Kuruvila v. Jijo Joseph**_ [2013(4) KLT 700] and contends that mere fact that there is no effective licence, in the sense that driver was not authorised to drive a goods vehicle on the date of accident, by itself is not sufficient to absolve the Insurance Company from the liability. 10. Per contra, the learned counsel for the Insurance Company cited _**Abba v. National Insurance Company Limited**_ [LAWS (KER)(2006) 820)] and submits that in the said decision, relying on _**National Insurance Company v. Swaran Singh**_ [2004(1) KERLT 781], this Court held that if the insurer succeeds in proving that the breach of policy conditions are so fundamental as to have attributed to the cause of the accident, the insurer can be absolved from the liability to identify the owner. So also, if the Tribunal entered a finding that the accident ## **M.A.C.A. No.639 of 2014(A)** ## **-: 10 :-** occurred due to the negligence of the driver, there is no further burden remaining on the insurer to discharge, for urging that the accident resulted out of the driving of the vehicle by a person without valid licence. 11. In view of the said arguments, I have meticulously read the decisions cited by both counsel appearing for the parties. I have already found that the 5[th] respondent had no valid and effective driving licence to drive the goods vehicle at the time of accident. It follows that the absence of valid driving licence amounts to violation of policy condition. Is the violation of policy condition alone sufficient to absolve the insurer from the liability? No. In the decision cited in _**Kuruvila**_ 's case (supra), this Court held that “the mere fact that there is no effective ## **M.A.C.A. No.639 of 2014(A)** ## **-: 11 :-** licence, in the sense that the driver was not authorised to drive a transport/goods vehicle on the date of accident by itself is not sufficient, unless the insurer is also able to prove that the breach of condition of driving licence is so fundamental as is found to have contributed to the cause of accident.” 12. Further, in _**Abba**_ 's case (supra), this Court held that (i) “under point No.6 in Swaran Singh's case, it was laid down that even where breach, on the part of the insured, concerning policy condition regarding holding of valid licence by the driver is proved by the insurer, the insurer would not be allowed to avoid the liability unless the said breach or breaches of the conditions are so fundamental as to have attributed to the cause of the accident”. (ii) “While Swaran Singh's case advises that the insurer has to establish the ## **M.A.C.A. No.639 of 2014(A)** ## **-: 12 :-** defence, laws relating to pleadings and proof, advice me to hold that, in a case where the insured owner as well as the driver did not place any pleadings on record and when the Tribunal has entered a finding that the accident occurred due to the negligence of the driver, there is no further burden remaining on the insurer to be discharged, for urging that the accident resulted out of the driving of the vehicle by a person without valid licence. 13. When applying the said proposition to the instant case, I find that the appellant or the 5[th] respondent driver did not place any pleadings or evidence on record as to prove that absence of valid driving licence was not so fundamental as to have attributed to the cause of accident. It was incumbent on them to plead and prove that the **M.A.C.A. No.639 of 2014(A)** ## **-: 13 :-** accident was not caused by any kind of negligence from the part of the 5[th] respondent in driving the vehicle. But, there is no pleadings or evidence in this respect. But, on the other hand, the Insurance Company has produced and marked Exts.A1 to A3 to prove that the accident was caused by the rash and negligent driving of goods vehicle by the 5[th] respondent. I have meticulously gone through Exts.A1 to A5. Exts.A1 to A3 would show that the accident was caused by the rash and negligent driving of the goods vehicle by the 5[th] respondent and the police registered a case against him chargesheeted for the rash and negligent driving of the goods vehicle. Thus, the Insurance Company succeeded in proving that breach of policy condition was so fundamental as to have attributed to the cause of accident. So, the Insurance Company is not **M.A.C.A. No.639 of 2014(A)** **-: 14 :-** liable to indemnify the appellant/owner. 14. The 4[th] respondent Insurance Company has the right to realise the compensation amount from the appellant. The Tribunal is justified in reserving a realisation clause in favour of the 4[th] respondent Insurance Company. In the absence of sufficient cause to condone the delay, the Tribunal is justified in dismissing I.A. Nos.6330 and 6331 of 2011 also. The appeal will stand dismissed. All pending Interlocutory Applications will stand closed. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge