Ouseph and others v. E.P. Davasy and The Manager, National Insurance Company

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **& THE HONOURABLE MRS. JUSTICE K.HEMA** ## **TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929** **MFA.No. 28 of 2002()** **-----------------------------** ## **OP(MV) 1774/1994 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA.** ## **APPELLANTS: PETITIONERS** - **-------------------** **1. OUSEPH, MANGALAM HOUSE, MANAKULANGARA P.O., NOW RESIDING AT ELINGAPRA P.O. CHALAKUDY.** **2. NARY, S/O. OUSEPH, DO. DO.** **3. JOSSY, D/O. OUSEPH, DO. DO.** **4. ANCY, D/O. OUSEPH, DO. DO.** **5. JOICY, D/O. OUSEPH, DO. DO.** **6. SHINE, S/O. OUSEPH, DO. DO.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS: RESPONDENTS** - **------------------------** **1. E.P.DAVASY, EDANILATH HOUSE, ARAKULAM P.O., KODUNGALLUR TALUK.** **2. THE MANAGER, NATIONAL INSURANCE COMPANY MULLAPPILLY BUILDING, A.M.ROAD, PERUMBAVOOR.** **BY ADV. SRI.P.R.RAMACHANDRA MENON - R2** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2008, ALONG WITH MFA. NO.1122/2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **J.B.KOSHY & K.HEMA, JJ. ------------------------------M.F.A.NOS.28 & 1122 OF 2002 (A) ----------------------------------Dated this the 5[th] day of February, 2008 J U D G M E N T** ## **KOSHY,J.** A 30 year old young man sustained fatal injuries in a motor accident on 16.8.1994. His parents, brothers and sisters filed an application for compensation amounting to Rs.3 lakhs. The tribunal awarded only Rs.89,800/- with interest after finding that the 1[st] respondent driver cum owner of the vehicle was responsible for the accident and the above vehicle was insured by the 2[nd] respondent Insurance company. Claimants filed M.F.A.No.28/2002 contending that compensation awarded was very low. Insurance company filed M.F.A.No.1122/2002 contending that the driver was not having a valid driving licence, and therefore, there is violation of policy conditions and court should have allowed the Insurance company to recover the amount from the owner of the vehicle (1[st] respondent before the tribunal). According to the Insurance MFA.28 & 1122/02 2 company, the driver was not having proper licence. As per the charge sheet, the driver had a valid driving licence to drive the vehicle upto 9.11.1993 and it was not renewed when the accident occurred. The 1[st] respondent was ex parte before the tribunal. Even though he was charge sheeted, there was no evidence to show that he was convicted for that offence. In any event, charge sheet shows that he was having licence but his badge was expired on 9.11.1993. But it was subsequently renewed. There was no evidence to show that accident occurred not because of absence of valid driving licence. Apart from production of charge sheet and investigation report, no evidence was adduced by the Insurance company to show that absence of valid driving licence was the cause of the accident. In any event, it can be seen that prior to the accident, he was having valid drivng licence and he is able to drive the vehicle. There is no evidence to show that he was disqualified to drive a vehicle. Supreme Court in a three member bench in _**National**_ _**Insurance company v. Swaran Singh (AIR 2004 SC 1531)**_ at paragraph 105, sub paras 3 to 6 held as follows: (iii). The breach of policy condition e.g. disqualification of driver or invalid driving MFA.28 & 1122/02 3 licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv). The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v). The court cannot lay down any criteria as to how said burden would be discharged, in as much as the same would depend upon the facts and circumstances of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow MFA.28 & 1122/02 4 defences available to the insured under Section 149(2) of the Act. It is true that Supreme Court in _**Oriental Insurance Co. Ltd. v. Meena Variyal and others ((2007) 5 SCC 428)**_ held that want of proper licence is a violation of policy condition. But the principles in Swaran Singh's case (supra) was accepted therein. In any event, in this case, 1[st] respondent has not served the notice so far. In the above circumstances, we cannot cast liability on the 1[st] respondent who was exonerated by the tribunal. Burden is on the Insurance company to prove that there is violation of policy conditions. That burden is not discarded by the Insurance company. In this connection, we refer to the Apex Court decision in _**Jitendra Kumar v. Oriental Insurance Co. Ltd. and another ((2003) 6 SCC 420)**_ and _**Narcinva V. Kamat and another v. Alfredo Antonio Deo Martins and others (1985 ACJ 397 SC).**_ It cannot be stated that it was proved that there was no valid driving licence at the time of accident or absence of the licence was the cause of the accident. Therefore, we are unable to accept the contentions of the Insurance company. MFA.28 & 1122/02 5 2. With regard to quantum of compensation, deceased was 30 years old. He has passed Diploma in Electronics and he was an electrician by profession. He produced Ext.A11 certificate to show that his monthly income was Rs.2,750/-. That was not accepted as all relevant certificates are not examined. Ext.A6 is the National Trade Certificate which shows that he has completed training at St.Xavier's Industrial Training Cetre, Pullur and has passed the test of Mechanics General Electronics. Even if the salary certificate is not accepted, since he was a Diploma holder, we are of the view that atleast he will get Rs.100/- per day. Even if he has no permanent employment, he will get 25 to 26 days work and he can earn more than Rs.2,500/- per month and after deducting[1] /3rd towards personal expenses, Rs.1,650/- can be fixed as the monthly contribution to the family. He was an unmarried person. Considering his age, a higher multiplier cannot be fixed as mother was 54 years and tribunal take 8 as the multiplier considering the age of the mother. We see no ground to interfere the above. If that be so, compensation for loss of dependency will be Rs.1,650 x 12 x 8 = Rs.1,58,400/-. MFA.28 & 1122/02 6 Tribunal has calculated an amount of Rs.76,800/-. Therefore, claimants are entitled to an additional compensation of Rs.81,600/-. We are of the view that compensation granted under other heads are just and reasonable and we are not interfering with the same. The above amount of Rs.81,600/should be deposited by the 2[nd] respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, father and mother are allowed to withdraw the same. With the above observations M.F.A.No.28/2002 is allowed and M.F.A.No.1122/2002 is dismissed. ## **J.B.KOSHY, JUDGE** **K.HEMA, JUDGE** prp ## **J.B.KOSHY & K.HEMA, JJ.** **--------------------------------------------------------** ## **M.F.A.NOS.28 & 1122 OF 2002** **--------------------------------------------------------J U D G M E N T ---------------------------------------------------------** **5[th] February, 2008**