Majeed C.A. v. Dishi and Others (MACA No. 2086 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.D.RAJAN** **FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939** **MACA.NO. 2086 OF 2012 () -------------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.1134/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 26-09-2008** **------------------** ## **APPELLANT(S)/1ST RESPONDENT:** **---------------------------** **MAJEED C.A., CHIRAYIL VEEDU, KUNNUMMA P.O., THAKAZHY, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS 2 &3 :** **-------------------------------------------** **1. DISHI, AG3ED 51 YEARS, S/O.KOCHAL, KOCHUTHARA HOUSE, KADAPPURAM BHAGOM, NAYARAMBALAM, ERNAKULAM-682509.** ## **2. ABOO P.K.,** **S/O.KOCHUMUHAMMAD, PULIKKASSERY HOUSE, HOUSE NO.CC.XX/26243, PERUMBADAPPU DESOM, PALLURUTHY, KOCHI-682005.(DELETED)** *** R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 13.08.2015 IN I.A. NO.2902/2015.** ## **3. THE NEW INDIA INSURANCE COMPANY LTD.,** - **P.B.NO.74, M.O.WARD, NEAR TOWN HALLL, ALAPPUZHA-688001.** - **ADDITIONAL 4[TH] RESPONDENT IMPLEADED** **2/-** **MACA.NO. 2086 OF 2012 -2-** **4. P.M. RASHEED,** **TRAVANCORE VENEERS AND PLYWOOD, KUTTIPADAM, ALLAPRA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT-683556.** ## **ADDITIONAL RESPONDENT NO.4 IS IMPLEADED AS PER ORDER** **DATED 16.08.2017 IN I.A. NO.2800/2017.** **R1 BY ADV.SRI.T.N.SURESH R3 BY ADVS.SRI.LAL GEORGE SRI.A.C.DEVY R4 BY ADVS. SRI.K.I.SAGEER SRI.K.M.NASARUDHEEN BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.2086 of 2012 ---------------------------------Dated this the 15[th] day of September , 2017** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1134 of 2004 of the Motor Accidents Claims Trbunal, North Paravur by the owner of the vehicle (1[st] respondent). One Dishi sustained injuries in a motor accident on 12.05.2004 while she was travelling as a pillion rider in a motor cycle. The learned tribunal awarded a sum of Rs.60,400/- with 7% interest per annum from the date of petition till realisation. The insurer was directed to pay compensation and reimburse the amount from the appellant. Being aggrieved by that, the owner of the vehicle preferred this appeal. 2. The claimant's case in the trial court was that on 12.05.2004 while she was travelling as a pillion rider on a motor cycle KL-7-V-200, along the VypinMunambam public road, another vehicle KL-4/H-5618 came from the opposite direction and hit against the motorcycle. As a result, she sustained serious injuries. In ## M.A.C.A. No.2086 of 2012 2 the trial court, the driver and owner of the auto rickshaw were set ex-parte. The insurer admitted the insurance of the auto rickshaw, but contended that the driver was not holding a valid driving licence at the time of accident. To substantiate the above contention, the claimant was examined as PW1 and her documents were marked as Exts.A1 to A6. The 3[rd] respondent's document was marked as Ext.B1. 3. The learned counsel appearing for the appellant contended that the vehicle was transferred to the 4[th] respondent and he was not the owner of the vehicle at the time of accident, therefore no liability can be fastened upon him. The mere contention of the insurer that the driver of the vehicle was not holding a valid driving licence itself is not a ground to give a direction to reimburse the amount from the owner of the vehicle. The insurance company has to prove that the vehicle was allowed consciously to be driven by the owner of the vehicle by a person who is not holding a valid licence. 5. Sec.147 of the Motor Vehicles Act, 1988 M.A.C.A. No.2086 of 2012 3 reads as follows: “147. **Requirements of policies and limits of liability.** - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee,- (a) engaged in driving the vehicle or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the ## M.A.C.A. No.2086 of 2012 4 vehicle, or (c) if it is a goods carriage, being carried in the vehicle or (ii) to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other M.A.C.A. No.2086 of 2012 5 prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” ## 6. This Court in **Oriental Insurance Co. Ltd.** ## v. **Jayan and Others [2012 KHC 656]** held as follows: Motor Vehicles Act, 1988- S.149- Mere absence of the driving licence by the person who drove the vehicle at the time of accident is not enough, the insurance company has to prove that the vehicle was allowed consciously to be driven by the owner of the vehicle by a person who is not holding a valid licence- So, there should be evidence to show that the owner after full knowledge about the fact that the person who drove the vehicle has no licence allowed consciously to drive the vehicle- The insurer also has to prove that the owner was guilty of negligence and failed to exercise M.A.C.A. No.2086 of 2012 6 reasonable care in the matter of fulfilling the conditions of the policy. ## 7. Apex Court in **Lal Chand** v. **Oriental Insurance Co. Ltd. (2006) 7 Supreme Court Cases** ## **318** held as follows: 10. Another decision rendered by a three-Judge Bench of this Court in National Insurance Co. Ltd. v. Swaran Singh can also be usefully referred to in the present context. This Court in para 110 of this judgment gave the summary of their findings to the various issues as raised in those petitions. We are concerned only with sub-para (iii) of para 110. The said sub-para (iii) reads thus: (SCC p.341) “110. (iii) The breach of policy condition e.g. Disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.” 11. As observed in the above paragraph, the insurer, namely, the Insurance Company, has to prove that the insured, namely, the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in M.A.C.A. No.2086 of 2012 7 the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time. 12. We respectfully agree and following the above ruling, we allow the appeal filed by the owner of the vehicle and absolve him from any liability as ordered by the High Court. It is now brought to our notice that the entire compensation has already been deposited and the same has been withdrawn by the claimants. No other point has been urged by both sides. We, therefore, allow the appeal and order no costs. 8. No positive evidence has been adduced by the appellant in the lower court to prove the violation of policy condition. In the absence of such evidence, the direction issued by the tribunal to the insurer to pay compensation and reimburse the amount from the owner is hereby set aside and the matter is remitted to the trial court for fresh consideration. The tribunal is directed to make a clear finding with regard to the liability of the owner and take a decision whether the driver was holding a driving licence at the time of accident. Both parties are directed to appear before the tribunal on 30.10.2017 and are at liberty to adduce fresh evidence on that point. M.A.C.A. No.2086 of 2012 8 The amount if any deposited by the appellant in this Court shall be returned to him forthwith. This appeal is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS P.A. To Judge