High Court of KeralaSingle Judge2022-01-24Dismissed

Mohammed Razi v. Jemerson P. James, Renjit and Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No. 2859 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-01-24
Court Decision / Holding: Appeal dismissed. The High Court upheld the MACT’s decision directing the insurer to pay compensation to the petitioners and allowing recovery from the owner, and declined to admit the appeal. The dismissal expressly preserves the insurer’s right to recover the amount from the owner in an appropriate proceeding.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Mohammed Razi

Respondents

Jemerson P. James
Renjit
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. C. Haridas

Counsels for Respondents

• Sri. George Cherian (Sr.)
• Smt. K. S. Santhi

Case Synopsis & Summary

This High Court of Kerala, in MACA No. 2859 of 2014, heard Mohammed Razi’s challenge to a common Motor Accident Claims Tribunal (MACT) award in O.P.(MV) No. 66/2009 arising from a road accident on 13.09.2008 on the Kappadu–Kuruvikkode road. The petition concerned a lorry, KL-4/G-7232, injuring the petitioner and another person; the vehicle’s owner (the second respondent) and insurer (the third respondent) were involved, and the driver (first respondent) was said to have acted negligently. The MACT consolidated two petitions under Section 166 of the Motor Vehicles Act, 1988, and directed the third respondent insurer to pay compensation to the petitioners while permitting recovery from the owner due to insurance-policy violations. The owner contended there was no employer–employee liability and that the workshop owner’s conduct during Onam holidays caused issues; the insurer argued policy-conditions violations, including lack of a valid driving licence. The appellant admitted the driver as his cleaner, undermining denials of employer–employee relation; the Tribunal nonetheless held that the policy conditions were violated. The High Court, citing Shaji v. Pradeesh and others, held that absence of a driving licence constitutes a fundamental breach, making the insurer liable to pay and recover from the owner, and dismissed the appeal at the threshold. The decision preserves the insurer’s recovery rights against the owner under law.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988Order XLI Rule II, CPC

Legal Doctrines & Maxims

Absence of driving licence constitutes a fundamental breach of policy conditions
Privity of contract between insurer and owner (insurer liable to pay and recover from owner)
Shaji v. Pradeesh and others (2016) 1 KLT 1 (cited law supporting fundamental breach principle)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the MACT erred in holding a policy-condition violation and that the impugned award is cryptic. He submits that there is no cogent evidence that the driver possessed or lacked a driving licence, and that the admission of the driver as the owner’s cleaner does not establish a valid employer–employee relationship or render the owner automatically liable for policy breach. It is argued that the workshop owner’s alleged inaction cannot be automatically translated into a policy violation against the owner, and that the insurer’s recovery right should be limited to circumstances actually proven. The appellant relies on the lack of conclusive evidence of licence status and disputes the blanket recovery direction against the owner, seeking a reexamination of liability consistent with actual driver status and licence proof.

Contentions of Respondents

The respondents argue that the first respondent-driver did not possess a valid driving licence, constituting a clear policy-violation that triggers the insurer’s liability. They contend there is privity of contract between the insurer and the insured, and that policy conditions necessitate the insurer to pay the petitioners’ claim and recover the amount from the owner. They emphasise the absence of a driving licence as a fundamental breach, validate the Tribunal’s finding, and maintain that the recovery from the owner is proper given the owner’s relationship with the driver and the vehicle.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shaji v. Pradeesh and others	2016 (1) KLT 1	Positive	The absence of a driving licence is a fundamental breach and the insurer is entitled to pay the compensation amount and recover it from the respondents.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **MACA NO. 2859 OF 2014** **AGAINST THE COMMON AWARD DATED 03.01.2014 IN O.P.(MV) NO.66/2009 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA. APPELLANT/2ND RESPONDENT:** **MOHAMMED RAZI, VAYALUMKAL HOUSE, KANJIRAPPALLY.** **BY ADV SRI.P.C.HARIDAS** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 3:** **1 JEMERSON P. JAMES, S/O. CHACKO, PANAYOLIL HOUSE, MOTHER THERESA ROAD, ATHIRAMPUZHA KARA AND VILLAGE, KOTTAYAM - 680 732.** - **2 RENJITH,** **S/O. RAJU, POOVATHUNKAL HOUSE, KORAMKARA, KANJIRAMGADU VILLAGE, MANATHAVADY TALUK, WAYNADU-670 645.** - **3 THE ORIENTAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM-686 001.** **BY ADVS.SRI.GEORGE CHERIAN SR. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2859 OF 2014** -2- **C.S. DIAS, J. ----------------------------------------------------MACA No.2859 of 2014 ----------------------------------------------------Dated this the 24[th] day of January, 2022 JUDGMENT** The petitioner was the second respondent in O.P. (MV) No.66 of 2009 on the file of the Motor Accidents Claims Tribunal, Pala. The first respondent in the appeal was the petitioner and the respondents 2 and 3 in the appeal were the respondents 1 and 3 before the Tribunal. The parties are for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had claimed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 13.09.2008. It was his case that, while he was walking through the Kappadu-Kuruvikkode road, a lorry bearing **MACA NO. 2859 OF 2014** -3- registration No.KL-4/G-7232 (lorry), driven by the first respondent in a negligent manner hit the petitioner and a person named Jento Joseph. Both of them sustained serious injuries. The lorry was owned by the second respondent and insured with the third respondent. Hence the petitioner claimed a compensation of Rs.2,00,000/- from the respondents. 3. Jinto Joseph filed O.P.(MV) No.23 of 2009 before the same Tribunal, against the same respondents, seeking an amount of Rs.4,00,000/- as compensation. 4. The first respondent did not contest both the claim petitions and was set ex-parte. 5. The respondents 2 and 3 had filed separate written statement in both the claim petitions. The second respondent contended that he had entrusted the lorry to one Shaibu, who in turn had given lorry to Ayswarya Auto Garage, Erattupetta. Due to the Onam **MACA NO. 2859 OF 2014** -4- holidays, the workshop was closed for three days. Shaibu left the lorry at the workshop. On 13.09.2008, the second respondent came to learn that the lorry had met with an accident. The first respondent had taken the lorry from the workshop without the knowledge or authority of the second respondent and met with the accident. The first respondent was not an employee of the second respondent and, therefore, the second respondent was not liable for the tortious act of the first respondent. Hence, the claim petition may be dismissed. 6. The third respondent had filed separate written statements, inter alia, contending that the first respondent did not have a driving licence and the second respondent had permitted the first respondent to drive the lorry. Therefore, there was violation of the insurance policy conditions. Hence, the third respondent may be exonerated of any liability. **MACA NO. 2859 OF 2014** -5- 7. The Tribunal consolidated and jointly tried the two claim petitions. 8. The petitioners in the two claim petitions had examined themselves as PWs1 and 2 and marked Exts.A1 to A19 in evidence. The disability certificate issued by the Medical Board was marked as Ext.X1. The second respondent and the person named Shaibu were examined as RWs1 and 2. 9. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petitions in part, by permitting the petitioners to recover the compensation from the third respondent. However, as there was violation of the insurance policy conditions, the third respondent was permitted to recover the compensation amount from the second respondent. 10. Aggrieved by the directions in the impugned award, permitting the third respondent to recover the compensation amount from the second respondent, the **MACA NO. 2859 OF 2014** -6- second respondent is in appeal. 11. Heard; Sri. P.C. Haridas, the learned counsel appearing for the appellant/second respondent and Smt. K.S. Santhi, the learned counsel appearing for the third respondent insurer on admission. 12. The principle grounds of challenge in the memorandum of appeal are:- (i) The Tribunal has erred in finding that there was violation of the policy conditions. (ii) The impugned award passed by the Tribunal is cryptic. (iii) The Tribunal has erred in accepting the admission of the appellant, that the second respondent in the appeal/the first respondent was working as his cleaner. (iv) The finding of the Tribunal that the appellant had not taken any action against the workshop owner, is not sufficient to attribute the violation of **MACA NO. 2859 OF 2014** -7- the policy conditions. 13. As the above grounds are inter-twined, they are being considered together. 14. The definite case of the third respondent insurer was that the first respondent did not hold a driving licence. Hence there was violation of the policy conditions. Ext.A14 final report laid by the police in Crime No.386 of 2008 of Kanjirappilly Police Station proves the fact that the accident was caused due to the negligence of the first respondent. As per Ext.A14, it is proved that the first respondent did not have a driving licence. 15. The appellant in his cross-examination has admitted that the first respondent was the cleaner of his lorry, although he had in the written statement denied the employer-employee relationship. Therefore, it is proved that the assertion in the written statement is false and wrong. **MACA NO. 2859 OF 2014** -8- 16. As the appellant has admitted that the first respondent was his employee, he cannot wash away his hands by stating that the first respondent had unauthorizedly taken away the lorry. It is on record that the lorry was in the workshop. Being the cleaner of the lorry, the first respondent was looking after the affairs of the lorry. In the above factual matrix, especially since the first respondent drew the vehicle and caused the accident, which is proved through Ext.A14 final report and that the first respondent did not have a driving licence, I do not find any error in the Tribunal arriving at the conclusion, since the appellant/second respondent had violated the insurance policy conditions. Also, the appellant has not brought on record what happened to his police complaint, though it is inconsequential. Thus, the Tribunal was completely justified in directing the third respondent insurer to pay the compensation amount to the petitioners and **MACA NO. 2859 OF 2014** -9- recover it from the second respondent – the owner of the vehicle. 17. It is settled law in **Shaji v. Pradeesh and others [2016 (1) KLT 1]** that the absence of a driving licence is a fundamental breach and the insurance company is entitled to pay the compensation amount and recover it from the respondents. 18. Even though the Tribunal has in the discussion portion of the award permitted the third respondent to recover the compensation amount from the respondents 1 and 2, in the operative portion the Tribunal has permitted the third respondent to recover the compensation amount from the second respondent, which is also correct because it is the appellant/second respondent who is the owner of the vehicle and there is only a privity of the contract between the third respondent and the first respondent. On an appreciation of the facts and the law, I do **MACA NO. 2859 OF 2014** -10- not find any merit in the appeal, which is only to be dismissed. Therefore, in exercise of the powers of this Court under Order XLI Rule II of the Code of Civil Procedure, I dismiss the appeal at the threshold, since it does not warrant to be admitted. Nevertheless, the dismissal of the appeal will not prejudice the right of the appellant/second respondent to recover the compensation amount from the first respondent, in accordance with law, in an appropriate proceeding. Sd/- **C.S. DIAS JUDGE** bpr