National Insurance Company Ltd. v. Gracy, Basil Baby, Bestin Baby (Minor), Benny Varghese & Others (MACA No.1140/2014)

MACA NO.1140/2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **MACA.No.1140 OF 2014** **AGAINST THE AWARD IN OPMV 61/2010 DATED 04-01-2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/2ND RESPONDENT IN OP(MV) NO.61/2010.** **THE NATIONAL INSURANCE COMPANY LTD. PERUMBAVOOR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/CLAIMANTS 1 TO 3 AND 1ST RESPONDENT IN OP(MV) NO.61/2010.:** **1 GRACY AGED 47 YEARS W/O.LATE BABY, KAKKADASSERIL HOUSE, VARAPPETTY VILLAGE- 686 691. 2 BASIL BABY AGED 22 YEARS S/O.BABY, KAKKADASSERIL HOUSE, VARAPPETTY VILLAGE. 686 691. 3 BESTIN BABY (MINOR), AGED 17 YEARS S/O.BABY, KAKKADASSERIL HOUSE, VARAPPETTY VILLAGE, REPRESENTED BY HIS MOTHER GRACY, W/O.LATE BABY, KAKKADASSERIL HOUSE, VARAPPETTY VILLAGE-686 691. 4 BENNY VARGHESE S/O.VARGHESE KALLUMKAL HOUSE, PALLARIMANGALAM.P.O., POTHANIKKADU, KOTHAMANGALAM.686 691. R1 TO R3 BY ADV.SRI.T.K.KOSHY ADV.SRI.ABE RAJAN R4 BY ADV. SRI.ALIAS M.CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.1140/2014 2 ## **C.R.** ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------M.A.C.A. No.1140 of 2014 -----------------------------------------------** ## **Dated 2[nd] September, 2019.** ## **J U D G M E N T** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal in declining the relief of pay and recovery sought by them. 2. One Baby died in a motor accident took place on 15.8.2009. Respondents 1 to 3 who are his wife and children instituted the proceedings for compensation. The case set out by respondents 1 to 3 in the proceedings was that Baby was riding a scooter on the fateful day through Kothamangalam-Muvattupuzha Road from south to north and while so, the fourth respondent who was sitting inside a Maruti van owned by him which was parked on the western side of the road opened its front right door abruptly and negligently and the handle of the scooter ridden by Baby consequently hit on the door of the van and as a result, Baby lost control over the vehicle, fell down MACA NO.1140/2014 3 and sustained fatal injuries. It is alleged by the claimants in the claim petition that the accident occurred on account of the negligence of the fourth respondent in abruptly opening the door of the van. Compensation was, therefore, claimed in the proceedings from the fourth respondent, and the appellant who was the insurer of the van. The appellant contested the proceedings, contending that the accident occurred on account of the negligence of the deceased himself. It was also contended by the appellant that the fourth respondent was not duly licensed to drive the van at the relevant time and therefore, if it is found that the accident occurred on account of the negligence of the fourth respondent, they shall be permitted to realise the compensation, if any, payable to the claimants from the fourth respondent. The Tribunal found that the accident occurred on account of the negligence of both the fourth respondent and the deceased, and apportioned the negligence on their part at 75% and 25% respectively. The Tribunal also found that respondents 1 to 3 are entitled to a sum of Rs.7,21,697/- by way of compensation. However, in the light of the finding as to the negligence on the part of the deceased, the Tribunal passed an award directing the appellant to pay 75% of the compensation determined as due to respondents 1 to 3 in their capacity as the insurer of the van. The appellant is aggrieved by the decision of the Tribunal, in so far as it declined the pay and recovery MACA NO.1140/2014 4 right sought by them. Hence this appeal. 3. Heard the learned counsel for the appellant as also the learned counsel for the respondents. 4. It is seen that in the course of the proceedings before the Tribunal, the appellant preferred an interlocutory application as I.A. No.2354 of 2010 for a direction to the fourth respondent to produce his driving licence. It is also seen that in the said interlocutory application, the Tribunal passed an order on 12.10.2010 directing the fourth respondent to produce his driving licence within one month or file an affidavit stating the reasons for non-production. It is also seen that pursuant to the said order, the fourth respondent has produced his driving licence particulars obtained by him from the Motor Vehicles Department. It is revealed from the driving licence particulars of the fourth respondent that the driving licence obtained by him expired on 15.5.2009 and the same was not renewed subsequently. 5. The learned counsel for the appellant, placing reliance on the decisions of the Apex Court in **National Insurance Co. Ltd. v. Geeta Bhat,** 2008 (2) KLT 1001 (SC) and **Shamanna v. Oriental Insurance Co. Ltd.,** (2018) 9 SCC 650, contended that in so far as it was established that the fourth respondent was not duly licensed to drive the vehicle at the time of accident, the Tribunal should have permitted the appellant to realise the compensation directed to be MACA NO.1140/2014 5 paid to respondents 1 to 3 from the fourth respondent for breach of the condition in the policy issued by them that the vehicle in respect of which the policy is issued shall be driven only by a person duly licensed. 6. In a case where breach of the conditions specified in the policy of insurance as mentioned in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (the Act) by the insured is established, the insurer has a right of recovery of the compensation from the insured, after satisfying the award passed by the Tribunal in favour of the claimant, is a proposition which is settled. In so far as the insurer in the case on hand is claiming a right of recovery of compensation from the insured on the ground of breach of a condition in the policy, the first and foremost question to be examined is as to whether the insurer has made out a case of breach of any of the conditions in the policy mentioned in sub-section (2) of Section 149 of the Act. The policy of insurance issued by the appellant to the fourth respondent contains a condition excluding driving of the vehicle by any person who is not duly licensed. The case set out by the appellant is that the fourth respondent has committed breach of the said condition and it is on that basis that they seek recovery right. Sub-section (2) of Section 149 of the Act reads thus: MACA NO.1140/2014 6 (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-- (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-- (I) a condition excluding the use of the vehicle-- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a MACA NO.1140/2014 7 representation of fact which was false in some material particular.” The condition mentioned in Section 149(2)(a)(ii) is one excluding driving of the vehicle by a person who is not duly licensed. The said condition would be attracted only when a person who is not duly licensed drives the insured vehicle when the wrongful act giving rise to the claim for compensation is committed. In the instant case, it is admitted by the appellant that the Maruti van covered by the policy of insurance issued by them was one parked on the side of the road when the wrongful act giving rise to the claim for compensation was committed. As such, according to me, the appellant has not made out a case of breach of any of the conditions of the policy of insurance. When the insurer fails to make out a case of breach of the conditions of the policy, they are not entitled to a right of recovery. I am supported in this view by the decision of the Apex Court in **National Insurance Co. Ltd. v. Swaran Singh,** 2004(1) KLT 781 (SC), wherein, a three Judge bench of the Apex Court has categorically held that mere absence of driving licence is not a defence available to the insurer against the insured and in order to avoid its liability towards the insured, the insurer must establish breach on the part of the insured. It was also held by the Apex Court in the said case that the insurer would not be allowed to avoid its liability towards insured even MACA NO.1140/2014 8 where the insurer is able to prove breach of the condition in the policies on the part of the insured excluding driving by persons who are not duly licensed, unless the said breach is so fundamental as is found to have contributed to the cause of the accident. The Apex Court has also noticed in the said judgement that there would be cases where accidents occur without there being any fault or involvement on the part of the driver of the vehicle such as accidents taking place owing to unforeseen or intervening causes like mechanical failures and similar and other causes having no nexus with the driver not possessing the requisite driving licence. The reference made by the Apex Court to the decision in **Jitendra Kumar v. Oriental Insurance Co. Ltd.,** 2003 (3) KLT 213 (SC), where a vehicle is lost by fire, demonstrates the said fact. 7. The learned counsel for the appellant contended that it is the duty of the driver of a vehicle parked on the side of the road to be vigilant and careful while opening the door of the vehicle and as it is found that the accident occurred on account of the negligence on the part of the driver of the vehicle, the question whether he is duly licensed is relevant, even though he was not actually driving the vehicle at the time of accident. No doubt, it is the duty of the driver of a vehicle parked on the side of the road to be vigilant and careful while opening the door of the vehicle. But, failure on the part of the driver in MACA NO.1140/2014 9 discharging the said duty will not confer any right on the insurer of the vehicle to recover the compensation, if any, directed to be paid to the claimants from the insured, as the same is not a defence available to the insurer in terms of Section 149(2) of the Act. The appeal, in the circumstances, is without merits and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs