MFA No. 229 of 2010: The Oriental Insurance Co. Ltd. v. Vaniyan Kamaran & Ratheesh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938 MFA.No. 229 of 2010 ------------------------ WCC 6/2004 of THE COMMISISONER FOR WORKMEN'S COMPENSTION, KANNUR DATED 21-12-2009 APPELLANT/2ND OPPOSITE PARTY: THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION,, ERNAKULAM, REPRESENTED BY ITS ASST.MANAGER. BY ADV. SRI.V.P.K.PANICKER RESPONDENT/IST OPPOSITE PARTY AND APPLICANT: 1. VANIYAN KAMMARAN, S/O. VANIYAN RAMAN ATHIKOTH HOUSE, CHEMMATTAMAYAL, BELLA POST, KASARAGOD - 671 121. 2. RATHEESH, S/O.KRISHNAN, THAYATH VEETTIL HOUSE, ERIKULAM POST, NILESHWARAM, KASARAGOD - 671 314. R2 BY ADV. SRI.PUSHPARAJAN KODOTH BY ADV. SRI.T.SETHUMADHAVAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-092016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. SURENDRA MOHAN** ## **&** ## **MARY JOSEPH, JJ.** ## **==============================** ## **M.F.A. No. 229 of 2010** ## **============================== Dated this the 27[th] day of September, 2016** ## **JUDGMENT** ## **K. Surendra Mohan, J.** The Insurance Company is in appeal against an order dated 21.12.2009 in W.C.C. No. 6 of 2004 of the Commissioner for Workmen's Compensation, Kannur. As per the order appealed against, an amount of Rs.1,92,691/- has been awarded as compensation to the second respondent herein for injuries sustained by him in a motor accident. He has also been held entitled to interest on the said amount at the rate of 12% per annum from the date of accident to the date of deposit. It has been further stipulalted in the award that, if there is any violation of the policy conditions, the appellant could reimburse the amount paid from the first respondent herein. 2. The case of the second respondent is that, he was the driver of an autorickshaw bearing registration No. KL-14C/4918. MFA 229/2010 2 On 8.9.2002, while he was driving the autorickshaw an accident occurred at Payyannnur-Kandoth. The autorickshaw had hit the divider on the road and had overturned. The second respondent sustained serious injuries to his head, neck, knee joint etc. He approached the Commissioner for Workmen's Compensation seeking compensation for the injuries suffered by him. The first respondent is the owner of the autorickshaw. The appellant is the insurer. 3. The claim of the second respondent was disallowed by the appellant contending that there was no employer-employee relationship between the first and the second respondents, that the first respondent was not the registered owner of the vehicle with whom there was no valid insurance policy, and that the disability that was alleged by the second respondent was far in excess of what he had actually sustained. Evidence was let in by both parties in support of their respective contentions. 4. The second respondent was examined as AW1 and Exts.A1 to A5 documents were marked on his side. The appellant examined RWs.1 and 2 and marked Exts.R1 to R9 documents. MFA 229/2010 3 The Commissioner for Workmen's Compensation considered the respective contentions in the light of the evidence on record and has granted the compensation, mentioned above. 5. According to Mr.V.P.K.Panicker, who appears for the appellant, the second respondent does not have a consistent version regarding the manner in which the accident had occurred. Our attention is drawn to Ext.A1 F.I.R. dated 14.5.2003 to point out that, initially the case of the second respondent was that the accident had occurred while he was walking along the side of the road. According to him, the autorickshaw was driven by some other person and had come and hit him. It was only later that the version has been changed and accordingly, this appeal is filed by the appellant. Exts.A1, R3 and R4 are relied upon in support of the above contention. It is next contended that, Ext.A6 permit that has been issued in respect of the autorickshaw, has authorised to ply the same only in Kasaragod District, but the accident had occurred in Kannur District. Therefore, it is contended that, the vehicle did not have permit at the time of the accident. Consequently there was violation of the policy MFA 229/2010 4 condition. It is further contended that, Ext.A4 disability certificate has been disputed by the appellant. A petition to refer the second respondent for examination by a Medical Board was however disallowed by the Commissioner. For the above reasons, it is contended that the order of the Workmen's Compensation Commissioner requires to be interfered with and set aside. 6. There is no appearance for the first respondent. Advocate Pushparajan Kodoth appears for the second respondent. According to the learned counsel, there is no discrepancy as pointed out by the counsel for the appellant in Ext.A1 F.I.R. The second respondent was actually the driver of the autorickshaw. There was no serious dispute regarding the above fact and the discrepancy in the F.I.R. has been properly explained by the second respondent when he was examined as AW1. His version has not been challenged by the appellant in cross examination. Therefore, it is not open to the appellant to take up the said contention in appeal. On the question of violation of the policy, the counsel points out that though the MFA 229/2010 5 autorickshaw was plying in Kannur District, there were no passenger in the vehicle. Therefore, there is no evidence to show that the vehicle was actually being plied for hire or reward. The second respondent driver was the only person in the vehicle at the time of the accident. Apart from the above, it is pointed out that violation of the permit conditions does not amount to a fundamental breach of the policy entitling the appellant to escape from the liability to compensate the injured. The counsel places reliance on the decisions of the Apex Court as well as this Court to substantiate his contention. On the contention attacking the disability certificate Ext.A4, the counsel points out that the said certificate has been issued by a Medical Board constituted as per the orders of the Commissioner for Workmen's Compensation. The same is dated 11.7.2008. No orders have been passed on the application, that is stated to have been filed by the appellant. Since the injured had been examined by a duly constituted Medical Board, no discrepancy as sought to be made out by the counsel for the appellant, is actually in existence, it is contended. 7. Heard. MFA 229/2010 6 8. It is not in dispute that the accident had occurred on 8.9.2002 when the autorickshaw bearing Registration No. KL-14C /4918 overturned after hitting the divider on the road. It is not in dispute that the second respondent had sustained injuries in the accident. The dispute is with respect to the capacity in which the second respondent was driving the vehicle. According to him, he was driving the vehicle as an employee of the first respondent. In order to support the contention of the appellant that the second respondent was not the driver of the vehicle, what is pointed out is a mention made in Ext.A1 F.I.R. It is stated in the said F.I.R. that as per the initial statement recorded, the second respondent had stated that an autorickshaw driven by another person had hit him while he was walking along the side of the road. However, at a later part of the very same document, we find it mentioned that the second respondent was the driver of the vehicle at the time of the accident. Admittedly, no other person has been injured in the accident. Therefore, the only conclusion possible is that the vehicle did not carry any passenger. When the second respondent was examined as AW1, MFA 229/2010 7 he has clarified the discrepancy by stating that the earlier version had been given to the Police by his father who was not in the know of things. We notice that the above explanation of the second respondent has not been challenged in the cross examination that followed. Therefore, there is nothing wrong in accepting the said explanation. Added to the above, is the fact that the first respondent who is the person who ought to have disputed the claim of the second respondent, has not chosen to appear in the case or to contest the matter even before the Commissioner for Workmen's Compensation. Therefore, we confirm the findings of the Workmen's Compensation Commissioner that the second respondent, who was the driver of the autorickshaw, was the employee of the first respondent. 9. A contention had been initially taken that the policy that is admitted to be in existence is in the name of another person and that the transfer of the vehicle to the first respondent had been made without the knowledge or consent of the Insurance Company. Therefore, the same is an illegal transfer exonerating the appellant from the liability to compensate the second MFA 229/2010 8 respondent. The question as to whether Section 157 of the Motor Vehicles Act (hereinafter called the Act for short) was applicable in such cases had been referred to a Full Bench of this Court. The same was considered along with, various other cases in which similar questions had been raised and has been answered by the Full Bench as per its order dated 21.1.2015. It has been laid down by the Full Bench that, once it is shown by evidence that there has been a transfer of the vehicle to another person by virtue of Section 157 of the Act, the purchaser of the vehicle would step into the shoes of the original policy holder. Therefore, the said policy would cover any liability that arises during the currency thereof. After deciding the said question of law, the cases have been remitted back for being disposed of, individually. It is thus that this appeal has come up before us for hearing. In view of the authoritative pronouncement of the Full Bench, we hold that the vehicle was covered by a valid insurance policy issued by the appellant herein. 10. The dispute regarding the disability that has been suffered by the second respondent is also not sustainable. This is MFA 229/2010 9 for the reason that, the second respondent had been examined by a Medical Board constituted by the Commissioner for Workmen's Compensation and his disability has been properly assessed. Ext.A4 is the certificate dated 18.11.2003 issued by one Dr.V.C. Mohandas. The second respondent was thereafter examined by a Medical Board constituted as per the orders of the Commissioner for Workmen's Compensation and his occupational disability has been assessed at 42%. The disability certificate issued by the Medical Board dated 11.7.2008 is part of the record. This has been marked as Ext.X1. We find from a perusal of the records that, no orders have been passed on the application filed by the appellant for examination of the second respondent by a Medical Board. The application appears to have been filed in 2007 whereas, we notice that the second respondent is seen to have been examined by the Medical Board in July, 2008. Therefore, we find that no prejudice has been caused to the appellant, for the above reason. 11. The other contention that has been pressed before us, is with respect to violation of the conditions of permit of the vehicle. MFA 229/2010 10 It is true that the permit has been issued with the stipulation that the vehicle should be plied within Kasaragod District, but the accident had admittedly occurred in Kannur District. However, there is nothing on record to show that the vehicle was being plied for hire or reward, at the time of the accident. The vehicle was empty, except for the second respondent who was driving the autorickshaw. There is no evidence regarding the purpose for which the vehicle was being used at the time of the accident and in the absence of any such evidence, no conclusion could be drawn, either way. Since the vehicle was empty of passengers, the only presumption that could be drawn is that the vehicle was being used for some other purposes, or the second respondent might have been taking the vehicle to Kasaragod, which is close by. It is clear from the records that the accident had occurred on the way from Payyannur to Neeleshwaram, Kasaragod District. 12. The counsel for the second respondent has placed reliance on the decision of the Supreme Court in **National** ## **Insurance Co. Ltd. v. Swaran Singh [2004(1)KLT 781(SC)]** wherein the Apex Court has held that even if the insurer is able MFA 229/2010 11 to prove breach on the part of the insured concerning a policy condition in order to avoid its liability under the policy, it would have to be additionally proved that the breach was of such a fundamental nature as to have contributed to the cause of the accident. A Full Bench of this Court in **National Insurance Co.Ltd. v. Jisha [2015(1)KLT 1 (F.B.)]** has considered the divergent dicta laid down by the Division Benches of this Court to clear the position and to hold that violation of conditions of a policy that are purely technical in nature would not entitle the Insurance Company to avoid liability. It has to be further proved that the same was a fundamental breach. A later Full Bench decision in **Augustine v. Ayyappankutty [2015(2)KLT 139 (FB)]** is also on the point. 13. In the light of the dicta noticed above, we are satisfied that even assuming that the vehicle has violated the condition of permit, namely having plied outside the District, it cannot be said that such violation was a fundamental breach that would entitle the appellant to avoid liability under the policy. For the reasons already noted above, in the present case, there is no evidence to MFA 229/2010 12 show that there has been a violation of the permit conditions. For the foregoing reasons, we find no infirmity in the compensation that has been awarded by the Commissioner for Workmen's Compensation warranting interference in this appeal. Therefore, the appeal fails and it is accordingly dismissed. The amount awarded, if any portion is not already deposited, shall be deposited, forthwith. **Sd/K. SURENDRA MOHAN JUDGE** **Sd/-** **MARY JOSEPH JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge MFA 229/2010 13