Muhammad Ali K.M. & Abdul Rahiman v. Ahammed Ali K.B., Mariyamma, Aysham and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943** ## **MACA NO. 1471 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 245/2009 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/S:** - 1 MUHAMMAD ALI K.M,S/O.ABDUL RAHIMAN, BERKA HOUSE, CHENGALA POST, KASARAGOD DISTRICT - 2 ABDUL RAHIMAN,S/O.MARIYAMMA, BERKA HOUSE, CHENGALA POST, KASARAGOD DISTRICT. BY ADV SRI.KODOTH SREEDHARAN ## **RESPONDENT/S:** - 1 AHAMMED ALI.K.B,S/O.B.P.MUHAMMED, MOTTAL HOUSE, BEVIKKARA, MULIYAR P.O., KASARAGOD DISTRICT. 671 121 - 2 MARIYAMMA,W/O.AHAMMED ALI K.B., MOTTAL HOUSE, BEVIKKARA, MULIYAR P.O., KASARAGOD DISTRICT.671 121 - 3 AYSHAM,D/O.AHAMMED ALI K.B., MOTTAL HOUSE, BEVIKKARA, MULIYAR P.O., KASARAGOD DISTRICT.671 121 - 4 THE ORIENTAL INSURANCE COMPANY LTD. D.O., 5 SHAM COMPLEX, 6/3090 B, BAZAR ROAD, MATTANCHERY, KOCHI-682002 ADDL R5. R.T.O, ERNAKULAM (IS IMPLEADED AS ADDITIONAL FIFTH RESPONDENT VIDE ORDER DATED 11.7.2013 IN MACA 1471/2012) BY ADV SRI.GEORGE CHERIAN THIRUVALLA BY ADV.K.G.SAROGINI, GOVERNMENT PLEADER **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1471 of 2012 ## **C.S.DIAS, J.** **====================== MACA No.1471 of 2012** **====================== Dated this the 22[nd] day of November, 2021.** ## **JUDGMENT** The appellants were the respondents 1 and 2 in OP(MV) 245/2009 on the file of the Motor Accident Claims Tribunal, Kasargod. The respondents in the appeal were the petitioners 1 to 3 and the third respondent before the Tribunal. The Regional Transport Officer, Ernakulam has been suo-motu impleaded by this Court as the additional fifth respondent in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 3 MACA No.1471 of 2012 Muhammed Noushad (deceased), son of the petitioners 1 and 2 and brother of the third petitioner. It was their case that, on 24.3.2009, while the deceased was riding his motor cycle bearing registration No.KLG 7445 from Chengala to Kasargod, an Excavator bearing registration No.KL 14G 4720 (JCB), driven by the first respondent in a negligent manner, hit the motor cycle of the deceased. The deceased sustained fatal injuries and lost his life. The second respondent was the owner and the third respondent was the insurer of the JCB. Hence, the petitioners claimed a compensation of Rs.5,06,000/- from the respondents, which was limited to Rs.5,00,000/-. 3. The case against the first respondent was dismissed for default. Although the second respondent had entered appearance, he did not file any written statement. 4. The third respondent contested the 4 MACA No.1471 of 2012 proceeding and filed a written statement, inter-alia, contending that there was no negligence on the part of the first respondent and that the first respondent did not hold the requisite endorsement on his driving licence to drive a JCB. Hence, there was violation of the policy conditions. Therefore, the third respondent was not liable to indemnify the second respondent of his liability arising out of the accident. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to realise from the third respondent an amount of Rs.3,28,500/- with interest and costs. The Tribunal on finding that there was violation of policy conditions, permitted the third respondent to recover the above amount from the second respondent. 6. Aggrieved by the direction permitting the third respondent to recover the compensation amount 5 MACA No.1471 of 2012 from the second respondent, the first and second respondents are in the appeal. 7. Heard: Sri.Kodoth Sreedharan, the learned Counsel appearing for the appellants/respondents 1 and 2 and Smt.K.S Santhi, the learned counsel appearing for the fourth respondent/third respondent/ insurer. 8. The question that arises for consideration in the appeal is whether the direction in the impugned award permitting the third respondent to recover the compensation amount from the second respondent is sustainable in law or not. 9. The specific case of the petitioners in the claim petition was that the accident occurred due to the negligence of the first respondent. The petitioners produced Ext A2 charge-sheet filed by the Kasargod Police in crime No.208/2009, which has established that the accident occurred due to the negligence of the 6 MACA No.1471 of 2012 first respondent. The respondents have not let in any evidence to the contrary to discredit the charge-sheet. Therefore, it is proved that the first respondent was negligent in causing the accident. Admittedly, the second respondent was the owner of the JCB at the time of the accident/death of the deceased and the third respondent was the insurer of the JCB. 10. The definite case of the third respondent in the written statement was that since the first respondent did not have the requisite endorsement on his driving licence to drive a JCB, he was not authorised and competent to drive the JCB. Therefore, the second respondent had violated the insurance policy conditions and, hence, the third respondent has to be exonerated of his liability. 11. The Tribunal, after finding that there was violation of insurance policy conditions and placing reliance on Sec.149 of the Motor Vehicles Act, 1988, 7 MACA No.1471 of 2012 directed the third respondent to pay the compensation amount and recover it from the second respondent. 12. This Court had by its order dated 11.7.2013 suo-motu impleaded the Regional Transport Officer, Ernakulam, as the additional fifth respondent in the appeal, and directed the fifth respondent to file a report. 13. The additional fifth respondent has filed a report dated 1.6.2008, stating that the vehicles like Mobile Crane, Road Roller, Tractor etc., are either LMV or LGV or HGV. Only HGV licence holders are authorised to drive all the above vehicles, but vehicles like Excavator (manufactured by JCB and others) are not categorized as LMV, MGV or HGV. Hence, the persons having LMV or MGV or HGV licence should undergo the test of competence for driving such vehicle and get authorisation in their licence under clause (j) of sub-sec (2) of Sec.10 of the Motor Vehicles 8 MACA No.1471 of 2012 Act, 1988, to drive an Excavator. 14. The Hon'ble Supreme Court in **Mukund Dewangan v. Oriental Insurance Company Ltd[ (2017 (3) KLT 1000 (SC)]** has, inter alia, held that a transport vehicle and omnibus whose gross vehicle weight does not exceed 7500 kg would be a light motor vehicle and also a motor car or tractor or a road roller whose unladen weight does not exceed 7500 kg, the holder of a driving licence to drive class of light motor cycle as provided in Sec.10(2) (d) is competent to drive a transport vehicle or omnibus. That is to say that, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class. 15. In the case at hand, there is no material on record to substantiate whether the JCB driven by the first respondent is a LMV or a transport vehicle and also its gross vehicle weight. 9 MACA No.1471 of 2012 16.It is only on the basis of the assertion made by the third respondent, that the Tribunal has held that the second respondent had violated the insurance policy conditions on the ground that the first respondent did not hold the requisite authorisation. 17. In the light of the law laid down in **Mukund Dewangan** (supra) and considering the fact that there is no material to substantiate whether the driver of an Excavator/JCB requires an additional authorization to drive such vehicle, I am of the definite opinion that the matter needs to be reconsidered by the Tribunal after affording the parties an opportunity to let in additional evidence and substantiate their respective stand. I find that there is sufficient force in the contention raised by the learned Counsel for the appellants that the Tribunal has without adverting to the law and without sufficient materials permitted pay and recovery right to the third respondent. I find cogent materials to 10 MACA No.1471 of 2012 invoke the power of this Court under Order XLI Rule 33 of the Code of Civil Procedure, to remand the matter back to the Tribunal, only with respect to recovery right granted to the third respondent. In the result, I set aside the finding of the Tribunal on issue No.4, permitting the third respondent to recover the compensation amount from the second respondent. The matter is, for the above limited purpose to reconsider issue No.4, remitted back to the Tribunal for fresh consideration after affording both the respondents 1 and 2 and the third respondent a further opportunity to let in additional evidence and such other materials as may be required in order to substantiate their respective stand. It is made clear that the quantum of compensation fixed by the Tribunal as regards the compensation payable with the petitioners is kept in tact. Therefore, only the respondents 1 and 2 and the third respondent are 11 MACA No.1471 of 2012 directed to appear before the Tribunal on 4.1.2022 either in person or through their respective Counsel. The Tribunal shall permit the respondents to let in additional evidence and to prove their respective stand and then take a decision on the question whether the third respondent is entitled to recover the compensation amount paid as per the impugned award from the second respondent, in accordance with law. The Registry shall forthwith send back the lower court records to the Tribunal. SD/- sks/22.11.2021 **C.S.DIAS, JUDGE**