N. Krishna Kumar v Bajaj Alliance General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **MACA.No.841 OF 2014** **AGAINST THE AWARD IN OPMV 790/2006 DATED 09-07-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/1ST RESPONDENT :-** **N.KRISHNA KUMAR S/O.NARAYANAN, VAKKILPADAM, KINASSERY, PALAKKAD DISTRICT.** **BY ADVS. SRI.M.A.ABDUL HAKHIM SRI.JOSEPH GEORGE (KANNAMPUZHA)** ## **RESPONDENTS/CLAIMANTS 1 TO 4 AND RESPONDENTS 2 & 3 :-** ***1 PARU KUNDUKAD HOUSE, EDAPARAMBU, MANJALOOR POST, ALATHUR TALUK, PALAKKAD DISTRICT, PIN.678 541 *2 KUMARI DO.CHAMI KUNDUKAD HOUSE, EDAPARAMBU, MANJALOOR POST, ALATHUR TALUK, PALAKKAD DISTRICT, PIN.678 541 *3 SANTHA DO.CHAMI KUNDUKAD HOUSE, EDAPARAMBU, MANJALOOR POST, ALATHUR TALUK, PALAKKAD DISTRICT, PIN.678 541 *4 UNNIKRISHNAN SO. CHAMI KUNDUKAD HOUSE, EDAPARAMBU, MANJALOOR POST, ALATHUR TALUK, PALAKKAD DISTRICT, PIN.678 541 *5 MANESH SO.THOMAS MANDAPATHIL HOUSE, NEAR LIBRARY, KINASSERY, PALAKKAD, PIN 678 707.** *** RESPONDENTS 1 TO 5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 19.06.2014 IN I.A.NO.1644/14 IN MACA NO.841 OF 2014.** **MACA.No.841 OF 2014** **2** **6 BAJAJ ALLIANCE GENERAL INSURANCE CO.LTD. 3RD FLOOR, FINANCE TOWER, KALOOR, ERNAKULAM, PIN-682017** **R1, R6 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.841 OF 2014** **3** ## **JUDGMENT** **Dated this the 11th day of December 2019** The appellant owner is in appeal against the award of the learned Motor Accidents Claims Tribunal, Palakkad whereby the liability to pay the compensation on account of an accident, having taken place, has been passed on to the driver. The facts with regard to the accident and the compensation awarded by the MACT is not in dispute. The only point to be adjudicated in the present case is whether in the facts and circumstances of the case, the owner failed to discharge the onus by taking on record the copy of the driving licence held by the driver Manesh to be valid at the time of the accident or not. 2. The learned MACT on the basis of the evidence in para 8 of the judgment held as under. “The case of R3 is that the vehicle involved is a transport vehicle and R2 was not having licence to drive a transport vehicle. As pointed out by the **MACA.No.841 OF 2014** **4** learned counsel for R3, petition was filed as I.A.No.3758/2008, calling upon R2 to produce the driving licence and the driving licence was not produced. It is true that R2 has produced and marked a photocopy of the licence as Ext.B1, but as pointed out by the learned counsel for R3, the page showing authorization for the particular vehicle is not included in that. It shows page up to 5 and the learned counsel for R3 pointed out that the copy of Ext.B1 served on the counsel for R3 from the side of R2 was having that particular page which is page No.7 and at the request of the learned counsel for R3, that was marked as Ext.B3, wherein curiously enough that particular page which is page No.7 is also shown and that page is showing the authorization to drive the transport vehicle. But in that page the relevant column is blank, as is seen from Ext.B3. This support the case of R3 that R2 was not having licence authorization to drive the transport vehicle. Apart from that R3 has produced and marked, Ext.B2 photo copy of the document showing payment of tax regarding this particular vehicle which is a good autorickshaw and wherein it is specifically shown as transport vehicle. Ext.B1, the photo copy of the driving licence produced and marked by R1 shows licence to drive the motor vehicle other **MACA.No.841 OF 2014** **5** than the transport vehicle as pointed out by the learned counsel for R3. The fact of non-production of the driving licence by R2 when called upon to produce the same is also to be taken in to consideration along with the above circumstances. The copy produced is as mentioned above. So, it can be seen that R2 was not having valid driving licence to drive the type of the vehicle involved in this case and it can be found that R3 cannot be held liable. However, being the insurance company, I find that R3 has to pay the amount if any awarded and can get the amount reimbursed from R1, the owner”. 3. Shri.M.A.Abdul Hakhim, the learned counsel appearing on behalf of the appellant submits that the aforementioned findings is not sustainable in the eye of law, in view of the categorical stand in the written statement of the Insurance Company as well as no objection on this points were raised. Aforementioned interpretations of this Court in paragraphs 3 and 6 of the judgment is not correct. 4. In support of the aforementioned **MACA.No.841 OF 2014** **6** contention, he relied upon the judgment of Full Bench of this Court in _**Shaji V. Pradeesh and Others [2018(2)KHC342]**_ . In the aforementioned judgment while relying upon the ratio decidendi culled out in _**Mukund Dewangan v. Oriental Insurance Company Ltd. [2017(4)KHC648],**_ it was held that the driver having a valid licence to drive light motor vehicle but was found to be driving a transport vehicle at the relevant point of time need not have a separate endorsement. 5. He further submits that, the driving licence Exhibit B3 brought on record reveals that Manesh was authorised to drive the three wheeler. As per the averments in paragraph 2 of the written statement the only point which the Insurance Company had taken was the driver was not holding a badge thus, urges this court for modification of the award as far as fastening of the liability is concerned. 6. Per contra, the learned counsel for the Insurance Company refutes the argument of **MACA.No.841 OF 2014** **7** Mr.M.A.Abdul Hakhim and submits that the driver of the vehicle was not holding badge, which is the integral part of the motor driving licence and as well as the policy. 7. In this regard, he invited attention of this Court to provisions of Section 10 of the Central Act and definition of Autorickshaw in subclause (c) of Section 2 of the Kerala Motor Vehicle Rules, 1989. He submits that the finding of the learned MACT on the issue of liability is perfectly legal and justified and need not call for any interference. 8. I have heard learned counsel for the parties and appraised the paper book. It would be in the fitness of things to extract paragraph 2 of the written statement quoted in the award. The insurance of the vehicle is admitted. But this respondent has no liability to indemnify R1, since in breach of policy condition, R1 has permitted the vehicle to be driven by R2, knowing that he was not authorized to drive transport vehicle and had held no badge. The negligence of R2 alleged is not admitted which is to be **MACA.No.841 OF 2014** **8** proved by the petitioners. The age of the deceased shown is not correct. The dependency of the petitioners on the deceased is denied etc. 9. On perusal of paragraph 3 and findings of the learned MACT, it is axiomatic that Insurance Company had not taken the plea of validity or endorsement of the driving licence, neither any such issue was pressed. 10. The learned MACT has gone in arena of surmises of conjectures fastening the liability on the owner particularly when the driving licence, Ext.B3 clearly depicts endorsement, then, non holding of the badge cannot be ground for alleging a breach of the policy for purpose of absolution. The matter does not end here. There had been many cases, if a person having an endorsement holding a valid driving licence to drive a LMV, after the amendment of the Central Act in 1994, a question arose, whether a person would require an endorsement to drive a transport vehicle or not. The aforementioned question has been answered in **MACA.No.841 OF 2014** **9** favour of the holder of the driving licence, which has been already declared in the judgment of **Mukund Dewangan (Supra).** While considering the aforementioned ratio full bench of this Court in _**Shaji (Supra)**_ answered the reference as under : 6. While referring the matter, the Division Bench of this Court had expressed a doubt as to whether the judgment of the Full Bench in Jisha K.P (Supra) can be applied when it comes to the question of authorization to drive a transport vehicle. In fact in Jisha (Supra), taking into consideration the facts of the case, no such distinction was observed. 7. However, the Apex Court having evaluatd the entire law on the subject in Mukund Dewangan (Supra) has held that light motor vehicle as defined in S.2(21) of the Act would include a transport vehicle as per weight prescribed in S.2(21) read with S.2(15) and S.2(48). It was further held that a transport vehicle and omnibus, gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also a motor car or tractor or a road roller, **MACA.No.841 OF 2014** **10** 'unladen weight' of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in S.10(2)(d) is competent to drive a transport vehicle or omnibus, gross vehicle weight of which does not exceed 75oo kg or a motor car or tractor or road roller, the “unladen weight” of which does not exceed 7500 kg. Therefore no separate endorsement on the licence is required to drive a transport vehicle of light motor motor vehicle class. Resultantly, the findings of the learned MACT fastening the liability on the owner is hereby set aside and accordingly fastened the liability on Insurance Company. Insurance Company is liable to pay the compensation to the claimants withosut any further delay. The appeal stands allowed in aforementioned terms. Sd/- ## **SMA** **AMIT RAWAL JUDGE**