New India Assurance Company Ltd. v. Manikandan, Devadas, Riyas.K and United India Insurance Co Ltd

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ``` MACA NO. 1771 OF 2012 ``` ``` AGAINST THE AWARD DATED 28.03.2012 IN OP(MV)NO.1189/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM ``` ## `APPELLANT/RESPONDENT NO.2` ``` NEW INDIA ASSURANCE COMPANY LTD, J.R.J.COMPLEX, OTTAPALAM, PIN-679101, REP.BY ITS MANAGER ``` ``` BY ADV.SRI.LAL K.JOSEPH ``` ## `RESPONDENTS/PETITIONER AND RESPONDENTS 1,3 AND 4` ``` 1MANIKANDAN S/O.CHAMMINI, MANNANKOT VALAPPIL HOUSE, PATTITHARA, THRITHALA, PIN-679 540 2DEVADAS S/O.VELU, VARAVATHUR HOUSE, IRUNILAMKODE, MULLOORKARA,THRISSUR DISTRICT, PIN-680583 3RIYAS.K, S/O.YUSUF, KOMBRA HOUSE, KAKKATTIRI P.O., MALA, PIN-679534 4UNITED INDIA INSURANCE CO LTD FAIZAL BUILDING, MAIN ROAD, OTTAPALAM, PIN-679101 R2 BY ADV. SRI.R.SREEHARI R4 BY ADV.SRI.P.K.MANOJKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 1771 of 2012 -:2:- ## **JUDGMENT** Dated this the 21[st] day of November, 2023 This appeal is filed by the insurer who was the 2[nd] respondent in OP (MV) No.1189/2008 on the files of Motor Accidents Claims Tribunal, Ottapalam (for short ‘the Tribunal’). Challenge was raised in the appeal against an award passed by the Tribunal on 28.03.2012 in the above Original Petition, for the reason that the Tribunal failed to grant right of recovery of the compensation amount after it being deposited in favour of the petitioner, from the owner cum driver of the offending vehicle. According to the 2[nd] respondent, it was established before the Tribunal by evidence that the driver of the goods autorickshaw bearing registration No. KL-10-Q 4200 which caused the motor accident was not holding a valid badge at the relevant time. In spite of the evidence in that regard forthcoming from the 2[nd] respondent, the Tribunal fixed liability upon it to pay the MACA No. 1771 of 2012 -:3:- compensation in favour of the petitioner and thus to indemnify the insured. 2. By reference order dated 09.11.2015, a Division Bench of this Court had doubted the judgment of a Full Bench of this Court in _**National Insurance Company Ltd. v. Jisha K.P. and others**_ **[2015 (1) KHC 29]** , on certain points while considering **Shaji Vs. Pradeesh and Others, [2018 (2) KHC 342]** and thus referred those. The Full Bench while deciding the above referred case considered the point, whether the absence of a badge by the driver of a transport vehicle is sufficient to exonerate the Insurance Company from liability to pay compensation to the claimant or in other words, whether the insurer is entitled to recover the compensation paid in favour of the claimant, from the owner and held that the insurer will have to prove that absence of a badge, was a fundamental breach which has contributed to the cause of accident. While coming to such MACA No. 1771 of 2012 -:4:- a finding, it also held that when the driver of the offending vehicle was holding a valid licence to drive a light motor vehicle, merely because he did not get any endorsement in the driving licence to drive a commercial vehicle, the insurer will still be liable to pay compensation. 3. After the order of reference, the very same issue came up before the Apex Court in **Mukund Dewangan V. Oriental Insurance Company Limited [2017 (4) KHC 648]** : **[AIR 2017 SC 3668]** . That was a case in which the question involved was whether a driver who is having a licence to drive light motor vehicle and is driving a transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle. A three Judge Bench while considering the said matter observed that there is a conflict of decisions of the Apex Court itself and accordingly referred the matter for decision to a Larger Bench. MACA No. 1771 of 2012 -:5:- 4. The findings of the Apex Court in paragraphs 14 and 43 of **Mukund Dewangan supra** are relevant in the context and are extracted hereunder **:-** “14. The definition of ‘light motor vehicle’ makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road – roller the unladen weight of any of which, does not exceed 7500 kgs. ’Gross vehicle weight’ has been defined in S.2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in S.2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in S.2(21) and S.10(2)(d) relating to the light motor vehicle. The definition of ‘light motor vehicle’ has to be given full effect to and it has to be read with S.10(2)(d) which makes it abundantly clear that ‘light motor vehicle’ is also a ‘transport vehicle’, the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle, i.e, light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross MACA No. 1771 of 2012 -:6:- vehicle weight or unladen weight as specified in S.2(21) of the Act. The provision of S.3 of the Act requires that a person in order to drive a ‘transport vehicle’, must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of ‘transport vehicle’ category in S.10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, Medium goods vehicle and medium passenger motor vehicle on the basis of ‘gross vehicle weight’ or ‘unladen weight’ for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy vehicle; whereas ‘medium passenger motor vehicle’ means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.” MACA No. 1771 of 2012 -:7:- 43. S.10(2)(a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of S.10(2). This court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, evenif such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private MACA No. 1771 of 2012 -:8:- car/tractor attached with trolley or used for carrying goods in the form of transport vehicle.” 5. In the light of the above findings of the Apex Court, the Full Bench answered the reference vide judgment in **Shaji Vs. Pradeesh and Others,** [2018 (2) KHC 342]. 6. In the case on hand the driver of the goods vehicle was also its owner and was arrayed as the 1[st] respondent in the Original Petition seeking compensation. It has come out in evidence that he was authorised to drive non-transport and transport vehicle at the relevant time when the motor accident was occurred. In view of the position of law settled by the Apex Court in **Mukund Dewangan** supra, no separate endorsement on the licence is required to drive the vehicle in question. Therefore, the impugned award fixing liability on the 2[nd] respondent to pay the compensation awarded in favour of the petitioner and thus to indemnify the insured is only to be maintained. The Tribunal has MACA No. 1771 of 2012 -:9:- correctly held so. Nothing survives for interference. The impugned award deserves to be maintained. In the result, the appeal is dismissed. Sd/- **MARY JOSEPH JUDGE** MJL