M.V. Francis @ Baby v C.K. Indira and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934 MACA.No. 562 of 2009 ( ) -----------------------OPMV.21/1991 of D.C. & SESSIONS & MACT,KASARAGOD APPELLANTS/RESPONDENTS 1 & 3: ------------------------------ 1. M.V.FRANCIS @ BABY, S/O.M.O.VARGHESE, RESIDING AT PADAPPU, P.O.SHANKARAMPADI KASARAGOD TALUK AND DISTRICT. 2. CHERYYIL JOY, S/O.THOMAS, RESIDING AT MALANKUNDU, P.O.BEDADUKKA BEDADUKKA VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S)/RESPONDENTS: -------------------------- 1. C.K.INDIRA, W/O.LATE VANNATHAN VEETIL RAGHAVAN RESIDING AT KELOTH IN PULLUR VILLAGE P.O.HARIPURAM, HOSDURG TALUK, KASARAGOD DISTRICT. 2. PRADEEP, S/O.LATE VANNATHAN VEETIL RAGHAVAN RESIDING AT KELOTH IN PULLUR VILLAGE P.O.HARIPURAM, HOSDURG TALUK, KASARAGOD DISTRICT. 3. PRAMOD, S/O.LATE VANNATHAN VEETIL RAGHAVAN RESIDING AT KELOTH IN PULLUR VILLAGE P.O.HARIPURAM, HOSDURG TALUK, KASARAGOD DISTRICT. 4. V.MADHAVI, W/O.KOTTAN, RESIDING AT KELOTH IN PULLUR VILLAGE, P.O.HARIPURAM HOSDURG TALUK, KASARAGOD DISTRICT. * 5. T.I.THOMAS, S/O.THOMMI, "BHARATH HOTEL" P.O.TALIPARAMBA, TALIPARAMBA TALUK CANNANORE DISTRICT (KANNUR). (deleted) 6. THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD. CANNANORE BRANCH, CANNANORE - 2 (KANNUR) MACA No.562/2009 2 7. THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT TRIVANDRUM. (the fifth respondent is deleted from the party array at the risk of the appellant as per order dtd.10.12.2010 in I.A.No.3298/2010) BY ADV. SRI.N.S.MOHAMMED USMAN BY ADV. GOVERNMENT PLEADER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** --------------------------------------------- MACA No.562 of 2009 --------------------------------------------- Dated this the 21[st] day of June, 2012 ## **JUDGMENT** ## Ramakrishna Pillai, J The driver and the registered owner of a jeep involved in a road traffic accident occurred on 5.5.1987 are before us in appeal. 2. Though this Court by judgment dated 18[th] July 2011 had modified the impugned award, the said judgment was recalled after condoning the delay as per order dated 11[th] April 2012 on R.P.Nos.698 of 2011 and 365 of 2012 filed at the instance of the 6[th] respondent Insurance Company. Thus, the matter has come up before us for fresh consideration. 3. The facts in brief are as follows: The jeep belonging to the 2[nd] appellant which appears to have been involved in a crime relating to the carriage of cashew nut (it was an offence as per the then existing law) was seized along with the contraband articles by the police on 30.4.1987. It had to be produced before the Revenue Divisional Officer under the relevant law. As the seized vehicle and the articles could not MACA No.562 of 2009 2 be produced on the date of seizure or on any subsequent dates, the vehicle which was available at Bedakam Police Station was being taken to the office of the Revenue Divisional Officer on 5.5.1987. Enroute, the jeep capsized and a police constable who was coming by that vehicle met with his death. The legal heirs of the deceased constable filed the claim petition alleging that the first appellant was the driver at the relevant time and it was due to his negligence, the accident had occurred. The State was also arrayed as the 7[th] respondent on the plea that the vehicle after its seizure was under the complete control of the State at the material time. The insurer of the vehicle disputed liability. The 7[th] respondent did not opt to file any written statement. 4. The learned Tribunal after considering the evidence found that it was the first appellant who was driving the vehicle at the time of the accident and the accident occurred only due to his negligence. After quantifying the amount of compensation, the liability was fastened with the appellants and the 7[th] respondent State. The 6[th] respondent Insurance Company was exonerated on the ground that the liability for a non-fair paying passenger was not covered by the policy document which was marked as Ext.B1. MACA No.562 of 2009 3 5. In this appeal, the appellants are challenging the finding of the learned Tribunal saddling them with the liability of paying compensation. 6. We have heard Mr.Jawahar Jose, the learned counsel for the appellants, Mr.Jamal, the learned Senior Government Pleader appearing for the 7[th] respondent State and Mr.Mohammed Usman, the learned standing counsel for the 6[th] respondent Insurance Company. The impugned award was also perused. 7. When the matter was taken up for hearing, it was informed by the learned Senior Government Pleader that the State has already paid the amount under the award to the claimants and steps are being initiated to recover the same from the appellants herein. 8. There are serious disputes as to who was at the driving seat at the relevant time. According to the appellants, the deceased Police Constable who was coming by the jeep was at the wheels when the accident had occurred. However, they do not dispute that when the journey started, it was the first appellant who was driving the vehicle. Half way through there was allegedly, a change of personnel at the wheels. The first MACA No.562 of 2009 4 appellant requested and the deceased Police Constable agreed to drive the vehicle after the journey commenced. While the claimants allege that it was the first appellant who was driving the vehicle at the material time, the appellants would contend that it was the deceased who was at the driver's seat at the illfated moment. The learned Tribunal has chosen to place reliance on the oral evidence of PW2 who claimed to have witnessed the incident to find that it was the first appellant who caused the accident. It is relevant to note that the appellants have not chosen to enter the witness box to tender any contra evidence. We are of the view that the jurisdiction under Section 173 need not be invoked to interfere with the said finding of fact, though it is quite possible to take a different view on the available facts. We see no valid reason to interfere with the finding of the Tribunal on that question and we confirm the same. 9. The argument advanced by the learned counsel for the appellants was that at the time of accident, the second appellant who was the registered owner was not having any control over the offending vehicle as it had been seized by the State. In support of this argument, the learned counsel for the appellants relied on MACA No.562 of 2009 5 two decisions of the Apex Court. The first decision relied on was **National Insurance Company Limited** v **Deepa Devi and others** (2008(1) SCC 414) where it was held that where the motor vehicle was requisitioned under a statute by the statutory authority and the accident occurred while the vehicle remained under continued requisition, the State and not the registered owner or the insurer is liable to pay compensation. The learned Senior Government Pleader would argue that the aforesaid case cannot be quoted as an authority for the proposition that the State would step into the shoes of the registered owner when the vehicle is seized in connection with a crime. In the aforesaid case, there was a complete take over of the vehicle by the Government and that is the reason for holding that the liability to pay compensation is on the State; so submitted the Senior Government Pleader. However, we notice that the logic behind that decision is that the registered owner does not exercise any control over the vehicle while the vehicle remains under requisition. The registered owner or the driver as the case may be cannot refuse the order of the officials who take the vehicle into custody. The driver, though continues to be the employee of the registered owner, will have to drive in accordance with the MACA No.562 of 2009 6 direction of the officials of the State. 10. The second decision referred to was **State of Maharashtra and others** v **Kanchanmala Vijaysing Shirke and others** (1995(5) SCC 659). In that case, the vehicle involved in the accident was driven by another person under authority of the Government Driver who was in charge of the vehicle. The vehicle was being used in connection with the affairs of the State and for official purpose. It was held that though the act was performed in an unauthorised manner, the Government was liable as the act was authorised and within the course of employment. 11. The crucial question that has to be decided is whether the first appellant who was at the wheels was under the control of the second appellant or under the control of the State. It is not in dispute that when the accident occurred the vehicle as well as the articles contained therein had been seized in a crime and the accident occurred on its journey from the Bedakam Police Station to the RDO concerned before whom the vehicle and the contraband articles were to be produced as per the relevant law. Though there was no absolute take over of the vehicle by the State it was under the control of the officials of MACA No.562 of 2009 7 the State. The second appellant who was the registered owner had no control over the vehicle at that time. The officials of the State were performing a lawful act authorised by the then existing law. The first appellant was taking the vehicle to the Revenue Divisional Officer, as directed by the Police Officials under the control of the State. It is not a case where the jeep was handed over with the consent of the registered owner. The State becomes vicariously liable for the act done by the Police officials during the discharge of their official duties. Thus, we fasten the liability of paying the compensation on the 7[th] respondent State. 12. Ext.B1 is the copy of the policy of Insurance. The definite contention taken by the 6[th] respondent Insurance Company was that Ext.B1 policy is subject to endorsement numbers 16, 21, 23, 26 and 10 only which are specifically mentioned in the policy. According to the Insurance Company, endorsement No.IMT.14(b) is not mentioned in the endorsement column of Ext.B1 policy and hence the policy does not cover the liability of non-fair paying passengers. Admittedly, the deceased constable was a non-fair paying passenger. No premium was paid to cover the liability of non-paying passengers. The amount MACA No.562 of 2009 8 of Rs.240/- shown in the schedule is the basic premium for statutory liability of third parties and not the premium paid as per IMT.14(b). 13. Moreover, the liability of the Insurance Company is only to indemnify the 2[nd] appellant the registered owner. In this case, we have already found that the vicarious liability falls on the 7[th] respondent State and not on the 2[nd] appellant on account of the seizure. Hence the Insurance Company cannot be saddled with the liability of paying compensation. 14. As we have found that the offending vehicle was under the control of the State at the time of the accident, the 7[th] respondent State is liable to pay the compensation. We absolve the appellants of the liability of paying compensation as the entire liability has to be suffered by the 7[th] respondent State. In the result, the appeal is allowed and the award shall stand modified as above. ## **Sd/- PIUS C.KURIAKOSE, JUDGE** ## **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** css/ true copy ## P.S.TO JUDGE