High Court of KeralaSingle Judge2020-08-05Appeals partly allowed; insurer’s recovery righ...

New India Assurance Co. Ltd. v. Kunhan and others

Case / Petition Number:MACA Nos. 1997 of 2011; 2179 of 2011; 2180 of 2011; 2181 of 2011; 2182 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-08-05
Court Decision / Holding: Appeals allowed in part; insurer’s right to recover from the owner and driver set aside; refunds of amounts already recovered with interest to be credited to the insurer within three months; the quantum of compensation for the death of Dideesan is not interfered with; final disposition of MACA Nos. 1997 of 2011, 2179 of 2011, 2180 of 2011, 2181 of 2011, and 2182 of 2011 disposed accordingly.
Final Disposition: Appeals partly allowed; insurer’s recovery rights against owner and driver set aside; refunds of recovered sums with interest due within three months; quantum of compensation for death not interfered; overall disposition of five MACAs.

Parties to the Case

Appellants / Petitioners

New India Assurance Co. Ltd.

Respondents

Kunhan
Yesoda
Subini

Legal Representation & Advocates

Counsels for Petitioners

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew

Counsels for Respondents

• Sri Santheep Ankarath
• Sri Sumodh Madhavan Nair

Case Synopsis & Summary

Five Motor Accident Claims Appeals arising from a 17 May 2008 road accident where a jeep KL-09/A-8411, travelling from Malamakkavu to Palakkad, was struck by a tipper lorry KL-10/Q-7818, resulting in the death of Dideesan and injuries to others. The Motor Accidents Claims Tribunal, OTTAPALAM, disposed of nine petitions by a common order, holding that the tipper driver did not display a badge and that liability lay on the owner and driver under the policy. The owner and driver pleaded that amendments to the Motor Vehicles Act, 1988 excluded vehicles with an unladen weight below 7500 kg from the definition of “transport vehicle,” thereby negating the badge requirement. The insurer (New India Assurance) challenged the Tribunal’s findings and the recovery rights against the owner-driver. The Kerala High Court, citing Mukund Dewangan v. Oriental Insurance Co. Ltd. (SC), examined the amended definition and the badge issue, and held that light tipper vehicles not defined as transport vehicles fall outside the badge requirement. Accordingly, the appeals by the owner and driver in MACA Nos. 2179–2182 were to be allowed in part, with the insurer’s recovery rights against them set aside, and refunds of recovered sums with interest to be paid within three months. The quantum of compensation for the death of the jeep occupant was not interfered with. The judgment was delivered by Justice K. Vinod Chandran on 05 August 2020.

Provisions of Law Cited

Motor Vehicles Act, 1988 (as amended) – definition of transport vehicle

Legal Doctrines & Maxims

Amendment to MV Act excludes light vehicles < 7500 kg from 'transport vehicle' (doctrine)
No badge requirement for non-transport vehicles (doctrine)
Mukund Dewangan v. Oriental Insurance Co. Ltd. — reliance to interpret amended MV Act provisions (Positive influence)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that amendments to the Motor Vehicles Act, 1988 exclude light tipper vehicles with unladen weight under 7500 kg from the category of 'transport vehicle,' thereby negating the badge requirement and impacting liability; relied on Mukund Dewangan to support the interpretation that the badge requirement can be inapplicable for such vehicles; Ext. B2 shows the tipper weighs 2190 kg, undermining the Tribunal’s finding that the vehicle was a transport vehicle; accordingly, liability should be set aside and the insurer should be entitled to recovery only to the extent supported by policy terms, with any sums already recovered to be refunded with interest; the court should revise the Tribunal’s order in favor of the insured (owner-driver) given the amended legal position.

Contentions of Respondents

The petitioners (claimants) maintain that the tribunal’s award should stand and that the policy liability remains; they contend that the vehicle involved was used as a transport vehicle, and the award for death in the jeep accident should be upheld; they argue that the insurer cannot evade liability by relying on amended definitions and request that the Tribunal’s order on compensation be maintained and recovery rights be preserved.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mukund Dewangan v. Oriental Insurance Co. Ltd.	[2017 (3) KLT 1000 (SC)]	Positive	Cited as authority supporting the interpretation that light-weight tipper vehicles not classified as transport vehicles under the amended MV Act do not require a badge.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **MACA.No.1997 OF 2011** **AGAINST THE AWARD IN OPMV NO.204/2009 DATED 20-06-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD. PALAKKAD, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 KUNHAN, S/O.CHOZHI, KUNNANKUZHIYIL VEEDU, MALAMAKKAVU.P.O., OTTAPALAM TALUK. PIN-693308. 2 YESODA, W/O.KUNHAN, KUNNANKUZHIYIL VEEDU, MALAMAKKAVU.P.O., OTTAPALAM TALUK. PIN-693308. 3 SUBINI, D/O.KUNHAN, KUNNANKUZHIYIL VEEDU, MALAMAKKAVU.P.O., OTTAPALAM TALUK. PIN-693308.** **R1 BY ADV. SRI.SANTHEEP ANKARATH R1 BY ADV. SRI.SUMODH MADHAVAN NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2020, ALONG WITH MACA.2179/2011, MACA.2180/2011, MACA.2181/2011 & MACA.2182/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1997 OF 2011 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **MACA.No.2179 OF 2011** **AGAINST THE AWARD IN OPMV 187/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 20.06.2011** ## **APPELLANTS/RESPONDENTS 1 & 2:** **1 ANIL @ ANEESH KRISHNAN AGED 25 YEARS S/O RAMAKRISHNAN, POONGAYIL VEEDU, PARALI P.O., KINAVALLUR, PALAKKAD DISTRICT. (DRIVER OF TIPPER LORRY KL10/Q-7818) 2 RATHEESH, AGED 25 YEARS S/O RAJAN, MOOTTIYAL THODI VEEDU, AYYER MALA, THENNUR P.O., PALAKKAD DISTRICT. (RC OWNER OF THE TIPPER LORRY KL-10/Q-7818)** **BY ADVS. SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT:** **1 HABEEB @ BAHEEB REHMAN AGED 20 YEARS S/O SAINUDHEEN, CHOLAYIL VEEDU, MALAMKKAVU P.O., NEAR THALAPOLI, PALAKUNNU TEMPLE, OTTAPPALAM TALUK, PALAKKAD, PIN-679101.** MACA.No.1997 OF 2011 3 **2 NEW INDIA ASSURANCE COMPANY LTD. P.B NO.43, N.S. TOWERS, NEAR STADIUM BUS STAND, PALAKKAD, PIN-678013. [INSURER OF THE TIPPER LORRY KL-10/Q-7818)** **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR. R2 BY ADV. P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2020, ALONG WITH MACA.1997/2011, MACA.2180/2011, MACA.2181/2011, MACA.2182/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1997 OF 2011 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **MACA.No.2180 OF 2011** **AGAINST THE AWARD IN OPMV 204 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 20.06.2011** ## **APPELLANTS/RESPONDENTS 1 & 2:** - **1 ANIL @ ANEESH KRISHNAN AGED 25 YEARS, S/O.RAMAKRISHNAN, POONGAYIL VEEDU, PARALI PO, KINAVALLUR, PALAKKAD DISTRICT, (DRIVER OF THE TIPPER LORRY KL-10/Q 7818).** - **2 RATHEESH, S/O.RAJAN, MOOTTIYAL THODI VEEDU, AYYER MALA, THENNUR PO, PALAKKAD TALUK, PALAKKAD DISTRICT, (RC OWNER OF THE TIPPER LORRY KL-10/Q 7818).** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/PETITIONERS & 3RD RESPONDENT:** - **1 KUNHAN, AGED 63 YEARS, CHOLAKKAL, MALAMAKKAVU PO, OTTAPALAM TALUK, PALAKKAD DISTRICT 679 191.** - **2 YASODA, AGED 53 YEARS, W/O.KUNHAN, CHOLAKKAL, MALAMAKKAVU PO, OTTAPALAM TALUK, PALAKKAD DISTRICT 679 191.** - **3 SUBINI, AGED 21 YEARS,D/O.KUNHAN, CHOLAKKAL, MALAMAKKAVU PO, OTTAPALAM TALUK, PALAKKAD DISTRICT 679 191.** MACA.No.1997 OF 2011 5 **4 THE NEW INDIA ASSURANCE CO.LTD. PB NO.43, N.S.TOWERS, NEAR STADIUM BUS STAND PALAKKAD 678 013 (INSURER OF THE TIPPER LORRY KL-10/Q-7818).** **R1 BY ADV. SRI.SANTHEEP ANKARATH R1 BY ADV. SRI.SUMODH MADHAVAN NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2020, ALONG WITH MACA.1997/2011, MACA.2179/2011, MACA.2181/2011, MACA.2182/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1997 OF 2011 6 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **MACA.No.2181 OF 2011** **AGAINST THE AWARD IN OPMV 310/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 20.06.2011** ## **APPELLANTS/RESPONDENTS 1 & 2:** |**1**|**ANIL @ ANEESH KRISHNAN,**| |---|---| ||**AGED 27 YEARS**| ||**S/O.RAMAKRISHNAN,**| ||**POONGAYIL VEEDU,**| ||**PARALI P.O. KINAVALLUR,**| ||**PALAKKAD DISTRICT**| ||**(DRIVER OF THE TIPPER LORRY, KL-10/Q/7818)**| |**2**|**RATHEESH, S/O.RAJAN**| ||**MOOTTIYAL THODI VEED, AYYAR MALA,**| ||**THENNUR P.O. PALAKKD TALUK,**| ||**PALAKKAD DISTRICT**| ||**(R.C.OWNER OF THE TIPPER LORRY, KL-10/Q-7818)**| ||**BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)**| ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT:** **1 NITHIN, AGED 22 YEARS, S/O. NARAYANAN THOTTUNGAL VEEDU, MALAMAKKAVU P.O. OTTAPALAM TALUK, PALAKKAD 679101.** MACA.No.1997 OF 2011 7 **2** **THE NEW INDIA ASSURANCE CO.LTD. P.B. 43 N.S.TOWERS, NEAR STADIUM BUS STAND, PALAKKAD 13 (INSURER OF THE TIPPER LORRY, KL-10/Q07818)** **R1-2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.KKM.SHERIF R1 BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2020, ALONG WITH MACA.1997/2011, MACA.2179/2011, MACA.2180/2011, MACA.2182/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1997 OF 2011 8 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **MACA.No.2182 OF 2011** **AGAINST THE AWARD IN OPMV 511/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 20.06.2011** ## **APPELLANTS/RESPONDENTS 1 & 2:** - **1 ANIL @ ANEESHKRISHNAN, AGED 27 YEARS S/O RAMAKRISHNAN, POONGAYIL VEEDU, PARALI P.O., KINAVALLUR,PALAKKAD DISTRICT. (DRIVER OF TIPPER LORRY KL-10/Q-7818)** - **2 RATHEESH, AGED 27 YEARS,S/O RAJAN, MOOTTIYI THODI VEEDU, AYYAR MALA,THENNUR P.O.,PALAKKAD DISTRICT. (RC OWNER OF TIPPER LORRY KL10/Q-7818)** **BY ADVS. SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/PETITIONERS & 3RD RESPONDENT:** - **1 SIDDIKH, AGED 46 YEARS S/O PATHUNNI UMMA, CHOLAKKAL, MALAMAKKAVU P.O., OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679101** - **2 FATHIMA, W/O SIDHIK, CHOLAKKAL, MALAMAKKAVU P.O., OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679101** - **3 FASEELA, D/O SIDHIK, CHOLAKKAL, MALAMAKKAVU P.O., OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679101** MACA.No.1997 OF 2011 9 **4 NEW INDIA ASSURANCE COMPANY LTD., P.B. NO.43, N.S. TOWERS, NEAR STADIUM BUS STAND, PALAKKAD.PIN678013. (INSURER OF TIPPER LORRY KL10/Q-7818)** **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR. R4 BY ADV. P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2020, ALONG WITH MACA.1997/2011, MACA.2179/2011, MACA.2180/2011, MACA.2181/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1997 OF 2011 10 **M.A.C.A. Nos.1997 of 2011, 2179 of 2011, 2180 of 2011, 2181 of 2011, 2182 of 2011** ## **JUDGMENT** **Five appeals, of which four appeals are filed by the owner and driver of a vehicle involved in an accident. M.A.C.A. Nos.1997 of 2011 is filed by the Insurance Company against the award passed in OP(MV) No.204 of 2009 with respect to the death of a person.** **2. The accident occurred on 17.05.2008, when a jeep bearing Registration No.KL-09/A-8411, travelling from Malamakkavu to Palakkad, was hit by a tipper lorry bearing Registration No.KL-10/07818. The driver of the tipper lorry was found to be negligent, which resulted in the accident. There were 9 claim petitions filed, which were disposed of by a common order. The Tribunal found that the driver of the vehicle did not have a badge. The** MACA.No.1997 OF 2011 11 **contention of the owner of the vehicle and the driver is that by amendment, vehicles having less than unladen weight 7500Kg were removed from the definition of transport vehicle. For driving a tipper lorry, there is hence no requirement for a badge.** **3. The specific issue with respect to the amendment made to the Motor Vehicles Act, 1988, specifically excluding vehicles having unladen weight of less than 7500Kg. from the definition of transport vehicle was discussed in** _**Mukund Dewangan v. Oriental Insurance Company Limited [2017 (3) KLT 1000 (SC)].**_ **It was categorically found that for driving such vehicles, which are not categorised as transport vehicles, there is no requirement for a badge. The Registration Certificate of the tipper lorry involved in the accident is produced as Ext.B2 before the Tribunal, which clearly shows** MACA.No.1997 OF 2011 12 **that the tipper lorry has only an unladen weight of 2190Kg. In such circumstances, the appeals filed by the owner and driver, ie. M.A.C.A. Nos.2179 of 2011, 2180 of 2011, 2181 of 2011, 2182 of 2011 have to be allowed. The right conferred for recovery from the owner and driver to the Insurance Company is set aside. The order is modified to that extent only in the claim petitions from which appeals have been filed.** **4. It is submitted that a portion of the amounts were already recovered from the 1[st] appellant. In such circumstances, the Insurance Company shall refund the said amount with interest as awarded by the Tribunal from the date of recovery till the date of refund. The refund shall be made at any rate within three months from the date or receipt of a certified copy of this judgment. The 1[st] appellant is directed to** MACA.No.1997 OF 2011 13 **communicate the Account Number of the 1[st] appellant with a cancelled cheque to the Insurance Company, who shall credit the amounts in the RTGS mode within a period of three months from the date of such communication of the Account Number. The original licence produced before this Court in I.A. No.1 of 2019 in M.A.C.A. No.2181 of 2011 shall be returned to the learned Counsel for the appellants immediately by the Registry with acknowledgment taken.** **5. M.A.C.A. No.1997 of 2011 is with respect to the quantum of compensation as against the death of one Dideesan in a road accident. The deceased was aged 25 at the time of his death. The deceased was the driver of the jeep, when the tipper lorry negligently driven rammed into it. The total amount awarded is Rs.3,79,000/-. This Court does not find any reason to interfere with the quantum of** MACA.No.1997 OF 2011 14 **compensation awarded. M.A.C.A. No.1997 of 2011 is dismissed.** **Ordered accordingly. No order as to costs** **in these appeals.** **Sd/-** **K. VINOD CHANDRAN, Judge.** **sp/05/08/2020** **/True Copy//** **P.A. To Judge**