National Insurance Company Ltd. v. Ammini Amma, Krishnankutty, Baby, Joy and Manoj

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935** ## **MACA.No. 2366 of 2010 ( )** **-------------------------OP(MV) NO. 745/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ------------------** **APPELLANT : 3RD RESPONDENT IN OP(MV) NO. 745/2003** **-----------------------------------------------------------------------------------** **THE NATIONAL INSURANCE CO. LTD., P.B.NO.70, MALIAKKAL BUILDING, MAIN ROAD IRINJALAKUDA, THRISSUR, REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, ERNAKULAM** **BY ADV. SRI.LAL GEORGE** **RESPONDENT(S) :** **----------------------------** **1. AMMINI AMMA,W/O.LATE MADHAVAN NAIR KOZHUKULLY HOUSE, P.O.PARAPPUKKARA NOW RESIDING AT C/O.ACHUTHAN N.N. P.O.THAIKATTUSSERY, THRISSUR-680001** ## **2. KRISHNANKUTTY,** **S/O.LATE MADHAVAN NAIR, KOZHUKULLY HOUSE P.O.PARAPPUKKARA, NOW RESIDING AT C/O. ACHUTHAN N.N. P.O.THAIKATTUSSERY, THRISSUR-680001** **3. BABY, D/O.LATE MADHAVAN NAIR, AGED 30 YEARS, KOZHUKULLY HOUSE, P.O.PARAPPUKKARA NOW RESIDING AT C/O. ACHUTHAN N.N. P.O.THAIKATTUSSERY, THRISSUR-680001** **4. MR.JOY, S/O.KUNJUVAREED, PALLATHATTY HOUSE, KANOOR, NELUKETTU P.O. KORATTY, PIN-680308** **5. MANOJ, S/O.VELAYUDHAN PUTHOOR HOUSE, CHEMMANDA, KARALAM THRISSUR-680001** **R1 TO R3 BY ADV. SRI.DILIP J. AKKARA R4 BY ADV. SRI.SAIGI JACOB PALATTY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** ----------------------------------------------------------- M.A.C.A.No.2366 of 2010 ----------------------------------------------------------Dated this, the 2[nd] September 2013 ## Judgment ## Siri Jagan, J. The appellant is the Insurance Company in OP(MV) No.745/03 before the Motor Accidents Claims Tribunal, Thrissur. The OP was filed by respondents 1 to 3 herein, who were the dependants of one Madhavan Nair, claiming compensation for the death of Madhavan Nair, who died in an accident caused by the negligent driving of a vehicle owned by the 4[th] respondent and driven by the 5[th] respondent. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded a total amount of Rs.1,03,400/- as compensation and directed the Insurance Company to satisfy the award. The appellant Insurance Company is challenging that part of the award, whereby the Insurance Company was directed to indemnify the 4[th] respondent for the compensation payable to respondents 1 to 3. 2. The contention of the appellant is that the chargesheets against the driver of the vehicle and the owner of the MACA 2366/10 2 vehicle show that the driver did not have a valid licence to drive the vehicle and the owner was negligent in allowing the driver without a licence to drive the vehicle. Therefore, there is clear violation of the policy conditions, in which event, the insurance company is liable to be exonerated from liability. It is also submitted that even assuming that as against the third party, the insurance company is liable to pay compensation, the insurance company is entitled to the right of recovery of the compensation paid by them to the claimants, from the 4[th] respondent owner of the vehicle. 3. In answer, the learned counsel for the fourth respondent would contend that the mere fact that the driver did to have a valid driving licence, does not, ipso facto, absolve the insurance company from liability as against the owner of the vehicle. The insurance company should further establish that there was wilful/contumacious breach on the part of the owner in allowing the driver to drive the vehicle without a valid driving licence. The 4[th] respondent relies on the decision of this Court in **Raveendran.V.R. v. M.Sarojini** (2010(1) KHC 726) in support of his contentions. 4. The insurance company would contend that the MACA 2366/10 3 Supreme Court has, time and again, held that in cases, where there is no driving licence for the driver of the vehicle, the insurance company can recover the compensation amount from the owner, after paying the same to the third party. He relies on the following decisions in support of the said contention : - 1.United India Insurance Company v. Lehru Fake Licence (2003(2) KLT 97 SC). 2. Oriental Insurance Company v. Nanjappan (2004 (13) SCC 224) 3. National Insurance Company v. Swaran Singh (2004(1) KLT 781). 4. National Insurance Company v. Kusumam Rai (2006(2) KLT 300 SC) 5. National Insurance Company v. Lakshmi Narayan Dutt (2007(3) SCC 700) 6. Iswar Chandra v. Oriental Insurance Company (2007(10) SCC 650) 7. Prem Kumari v. Prahlad Dev (2008(3) SCC 193) 8. Sardari v. Sushil Kumar (Judgment in Civil Appeal No.1733/08 dated 4.3.08) 9. National Insurance Company v. Geetha Bhat (2008(1) KLT 1001 SC) 10.New India Assurance Company v. RoshanBen (2008(8) SCC 253). 11.Ram Babu Tivari v. United India Insurance Company (2008(8) SCC 165). 12.Oriental Insurance Company v. Syed Ibrahim (2007 ACJ 2816 SC) 13.National Insurance Company v. Vidhyadhar Mahariwala (2008(12) SCC 701). 14.Kusum Latha v. Satbir and others (2011(3) SCC 646). 15.Jawhar Singh v. Bala Jain (2011(6) SCC 425) - 16.S.Iyyappan v. United India Insurance Company (2013(7) SCC 62) It is further contended that in this case, even going by the decision relied on by the 4[th] respondent, the insurance company has conclusively proved that the owner was negligent in allowing MACA 2366/10 4 the driver of the vehicle to drive the vehicle without a valid licence, insofar as, for that, the owner was also charge-sheeted as per Petty Case No.1317/01 before the Judicial First Class Magistrate Court, Irinjalakuda. It is submitted that in view of the decision of this Court in **New India Assurance Company v. Balakrishnan** (2011(4) KLT 412), a charge-sheet is a reliable document for proving negligence in a motor accident claim. That decision is applicable to proof regarding negligence on the part of the owner in allowing the driver of the offending vehicle to drive the vehicle without a valid licence, is the contention raised. 5. We have considered the rival contentions in detail. 6. It is not disputed by the 4[th] respondent that the driver did not have a valid licence to drive the vehicle. His only contention is that the mere fact that the driver did not have a valid driving licence, does not, ipso facto, prove that the owner was correspondingly negligent in allowing the driver to drive the vehicle without a valid licence and it is for the insurance company to prove wilful/contumacious breach on the part of the MACA 2366/10 5 owner. As far as the question regarding liability of the insurance company is concerned, certainly, as against third parties, the insurance company is liable to satisfy the award, but in view of the various decisions of the Supreme Court relied on by the appellant, when there is violation of the policy conditions, they are entitled to the right to recover the amount paid to the third party from the owner of the vehicle. Of course, in **Raveendran** 's case (supra), this Court has held that insurance company should establish not only that the driver had no driving licence, but also that there was wilful/ contumacious breach on the part of the owner. But, it is to be noted that the very same Bench, which passed the judgment in **Raveendran** 's case had, in **Balakrishnan** 's case (supra), held that charge-sheet is a reliable evidence to prove negligence in a motor accident claim. Here, Ext.A4 is the final report in Crime No.403/01, filed by the police before the Judicial First Class Magistrate Court, Irinjalakuda. Going by the same, police had charge-sheeted the driver of the vehicle for driving the vehicle without a valid driving MACA 2366/10 6 licence and also the owner, for allowing the driver to drive the vehicle without a licence. Therefore, going by the decision in **Balakrishnan** 's case (supra), charge-sheet can be relied upon to decide the issue as to whether there was contumacious conduct on the part of the owner of the vehicle in allowing the driver to drive the vehicle without a valid driving licence. Therefore, even going by the decision in **Raveendran** 's case (supra), we are satisfied that the insurance company has proved that the owner has violated the policy conditions in allowing the driver of the vehicle to drive the vehicle without a valid licence, which spells out negligence on the part of the owner. Therefore, we are satisfied that the appellant should be given the right to recover the amount paid by them to the claimants from the 4[th] respondent owner of the vehicle. To that extent, the appellant is entitled to succeed in this case. Accordingly, while upholding the impugned award, we hold that the insurance company is entitled to recover the amount paid by the appellant to the claimants as per the award, from the 4[th] respondent-owner of MACA 2366/10 7 the vehicle. To that extent, the impugned award of the Tribunal would stand modified. With the above modification of the impugned award, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA 2366/10 8 MACA 2366/10 9