National Insurance Company Limited v. Sudheeran Pillai, Pankajam and T. Jayapal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935** **MACA.No. 2621 of 2010 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 587/2007 of M.A.C.T.,KOTTAYAM DATED 31-08-2010** **--------** **APPELLANT/2ND RESPONDENT** **------------------------** **NATIOANL INSURANCE COMPANY LIMITED, KOTTAYAM, NOW REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G ROAD KOCHI-35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS & 1ST RESPONDENT:** **----------------------------------------** **1. SUDHEERAN PILLAI,S/O.VASUDEVAN ELAYATHU, SREENILAYAM, PERUMBAIKADU P.O, KOTTAYAM-686028** **2. PANKAJAM,W/O.SUDHEERAN PILLAI,-DO-** **3. T.JAYAPAL,S/O.THIRUMAN,4-4-57 (A) PUTHOOR, ATHIMARATHUR, ARANGANNOOR P.O METTUR TALUK, SELAM DISTRICT, TAMILNADU PIN-636 401.** **R1-2 BY ADV. SRI.LIJI.J.VADAKEDOM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VK** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** ----------------------------------------------------------M.A.C.A.No.2621 of 2010 ----------------------------------------------------------Dated this, the 19[th] day of August 2013 ## Judgment ## Ramakrishnan, J. The insurance company in OP(MV) No.587/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam, is the appellant herein. The application was filed by the legal heirs of deceased Arun Kumar, who are the parents of the deceased, claiming compensation for his death, caused on account of the rash and negligent driving of a vehicle, owned and driven by the first respondent and insured with the appellant herein. After considering the evidence on record, the Tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.3,09,500/- under various heads as follows : 2 MACA 2621/10 |**_Head_**|**_Amount ₹_**| |---|---| |**_Transport to hospital_**|**_2,000.00_**| |**_Damage to clothing_**|**_500.00_**| |**_Funeral expenses_**|**_3,000.00_**| |**_Medical expenses_**|**_1,000.00_**| |**_Pain and sufferings_**|**_15,000.00_**| |**_Loss of dependency_**|**_273,000.00_**| |**_Loss of love and affection_**|**_15,000.00_**| |**_Total_**|**_309,500.00_**| Though the insurance company had taken up a contention in their written statement that the first respondent had no valid driving licence to drive a transport vehicle and also the badge to drive the same, the Tribunal has not considered that aspect, but made the insurance company liable to pay the amount to respondents 1 and 2 herein. Dissatisfied with the finding of the Tribunal that the appellant is also liable to pay the amount, the insurance company has come up before this Court with the above appeal. 2. Heard the learned counsel for the appellant and respondents 1 and 2, who were the claimants before the court below. 3 MACA 2621/10 3. The counsel for the appellant submitted that the first respondent was ex parte and he did not contest the case. In order to prove their contention, though they had filed IA No.4206/09 in the lower court to produce the driving licence, he did not produce the same. The Tribunal has closed the application noting adverse inference against him. In spite of that, the Tribunal did not consider these aspects and the contention of the insurance company is that they are not liable to indemnify the insured as the insured had no driving licence was not even discussed, but the Tribunal has made them liable for the amount which is unsustainable in law. 4. Even before this court, the first respondent in the lower court was ex parte. 5. The counsel for the petitioners in the lower court who are respondents 1 and 2 herein submitted that they produced a copy of the driving licence obtained under the provisions of the Right to Information Act to prove that the first respondent was having a valid driving licence to drive the 4 MACA 2621/10 vehicle at the relevant time and according to him, the Tribunal was perfectly justified in not exonerating the insurance company from paying the amount. 6. We have considered the rival contentions of both parties in detail. 7. The only question raised by the insurance company is their liability to pay the compensation. Admittedly, the appellant had filed an application before the Tribunal calling upon the owner-cum-driver of the vehicle involved in the accident to produce the driving licence, but that was not produced. The Tribunal has not considered this aspect at all in the impugned judgment. The document produced by the appellant before this Court along with IA No.2184/13 also does not show that he was having a valid driving licence to drive a heavy motor vehicle at the relevant time. It only says that he is entitled to drive a light motor vehicle and transport vehicle. There is nothing on record to show that any badge was given to him for driving a heavy transport or goods vehicle. The 5 MACA 2621/10 document produced is also not helpful to prove the fact that he was having a valid driving licence to drive a heavy goods vehicle at the relevant time. Under such circumstances, there is some force in the submission made by the learned counsel for the appellant that the Tribunal was not justified in not exonerating the insurance company. Further, the Tribunal could have, at least, given a right to recover the amount from the insured. 8. Further, in the decision reported in **S.Iyyappan v. United India Insurance Company Limited and another** (2013(3) KLJ 306), the Supreme Court has held that even in a case where the driver has no badge, the insurance company cannot disown its liability to pay compensation on the ground that the driver was holding a licence to drive only a light motor vehicle without an endorsement to drive a commercial vehicle. But the right to recover the amount under Section 149(4) of the Motor Vehicles Act has been reserved in favour of the insurance company, if they were able to prove failure of the MACA 2621/10 6 policy condition. In this case, they had produced the policy before the Tribunal and it was marked as Ext.B2, which will go to show that they are liable to indemnify the insured only if the driver had driven the vehicle with an effective driving licence. In this case, they were able to establish that the driver had no effective driving licence to drive the vehicle involved in the accident. But, that can be treated only as a breach of policy condition which will not affect the right of the third party on whom there is a right to recover compensation from the insurance company on account of the issuance of the policy by virtue of Section 147(1) and 149(1) of the Motor Vehicles Act. Under such circumstances, the Tribunal ought to have given the right of recovery of the amount to the insurance company from the insured. So, we are not interfering with the finding of the Tribunal, to the extent the insurance company is made liable to pay the amount to the claimants, but modifying the same to the effect that they are entitled to recover the amount so paid from the first respondent in the lower court, who is the 7 MACA 2621/10 third respondent herein. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA 2621/10 8 MACA 2621/10 9