Muhammed Razi Vayalumkal v. Jinjo Joseph, Renjith and Oriental Insurance Co. Ltd.

1 MACA No.2858 of 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 MACA NO. 2858 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 23/2009 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/S:** MUHAMMED RAZI VAYALUMKAL HOUSE,KANJIRAPPALLY. BY ADV SRI.P.C.HARIDAS ## **RESPONDENT/S:** 1 JINIO JOSEPH S/O JOSEPH,CHALAYIL HOUSE, KOTTAMURY.P.O,THRIKKODITHANAM,CHANGANACHERRY, KOTTAYAM-680732. 2 RENJITH S/O.RAJU,POOVATHUNKAL HOUSE,KORAMKARA,KANJIRAMGADU VILLAGE,MANANTHAVADY TALUK,WAYANADU-670645. 3 THE ORIENTAL INSURANCE CO.LTD REPRESENTED BY ITS DIVISIONAL MANAGER,KOTTAYAM686001. BY ADVS. SMT.K.S.SANTHI -R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2858 of 2014 **C.S. DIAS, J. ----------------------------------------------------MACA No.2858 of 2014 ----------------------------------------------------Dated this the 2[nd] day of February, 2022.** **JUDGMENT** The appellant was the second respondent in O.P. (MV) No.23 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 filed the 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 registration No.KL-4/G-7232 (lorry), driven by the first 3 MACA No.2858 of 2014 respondent in a negligent manner hit the petitioner and a person named Jemerson P.James. 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.4,00,000/- from the respondents. 3. Jemerson P.James filed O.P.(MV) No.66 of 2009 before the same Tribunal, against the same respondents, seeking an amount of Rs.2,00,000/- 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 statements in both the claim petitions. The second respondent contended that he had entrusted the lorry to one Shybu, who in turn had given lorry to Ayswarya Auto Garage, Erattupetta. Due to the Onam holidays, the workshop was closed for three days. 4 MACA No.2858 of 2014 Shybu 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. 7. The Tribunal consolidated and jointly tried 5 MACA No.2858 of 2014 the two claim petitions. 8. The petitioners in the two claim petitions had examined themselves as PWs 1 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 Shybu were examined as RWs 1 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 second respondent is in appeal. 6 MACA No.2858 of 2014 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 the policy conditions. 7 MACA No.2858 of 2014 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. 16. As the appellant has admitted that the first 8 MACA No.2858 of 2014 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 recover it from the second 9 MACA No.2858 of 2014 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 not find any merit in the appeal, which is only to be 10 MACA No.2858 of 2014 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** sks/2.2.2022