P. Damodaran Pillai v. Sikkandar M., N. Murukesh, United India Insurance Company Ltd., The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 30TH DAY OF JUNE 2014/9TH ASHADHA, 1936 MACA.No. 2255 of 2011 () ------------------------- MONDAY, THE 30TH DAY OF JUNE 2014/9TH ASHADHA, 1936 AGAINST THE AWARD IN OPMV 1126/2004 of MACT,TRIVANDRUM DATED 8.4.10 APPELLANT/FIRST RESPONDENT: ------------------------------------------------ P.DAMODARAN PILLAI S/O.LATE PRABHAKARAN PILLAI, T.C. 29/142, PRIYANIKETH KAVARADI ROAD, PETTAH P.O., THIRUVANANTHAPURAM - 24. BY ADVS.DR.K.P.SATHEESAN SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR ## RESPONDENT(S)/PETITIOINER & RESPONDENTS 2 TO 4 : ------------------------------------------------------------------------------- 1. SIKKANDAR.M S/O.LATE MOHAMMED HANEEFA, NOOR MAHAL KIZHAKKANELAH P.O., NAVAIKULAM VILLAGE THIRUVANANTHAPURAM, PIN - 695 603. 2. N.MURUKESH S/O.K.NARAYANASWAMY PILLAI, LAKSHMI VILAKAM VEEDU T.C. 40/425, THENGAPPURA LANE, PETTAH P.O. THIRUVANANTHAPURAM - 24. 3. UNITED INDIA INSURANCE COMPANY LTD, DIVISIONAL OFFICE NO.1, MALANKARA BUILDING V.J.T.HALL ROAD, PALAYAM, THIRUVANANTHAPURAM - 33. 4. THE NEW INDIA ASSURANCE COMPANY LTD, DIVISIONAL OFFICE NO.1, KOTTARATHIL BUILDING ANNEX PALAYAM, THIRUVANANTHAPURAM – 33. R2 BY ADV. SRI.G.D.PANICKER R2 BY ADV. SMT.JEENA JOSEPH R3 BY ADV. SMT.R.REMA R4 BY ADV. SRI.RENI ANTO KANDAMKULATHY SRI.JOHN JOSEPH VETTIKAD SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## APPELLANT'S ANNEXURES: ANNEXURE I: COPY OF REPORT OF ABDOMEN SONOGRAM DT.2.2.10 ISSUED BY THE KIMS HOSPITAL, THIRUVANANTHAPURAM. ANNEXURE II: COPY OF DISCHARGE SUMMARY DT.8.2.10 FROM THE KIMS HOSPITAL, THIRUVANANTHAPURAM. ANNEXURE III: COPY OF MEDICAL PRESCRIPTION ISSUE BY THE SENIOR CONSULTANT OF GENERAL HOSPITAL, THIRUVANANTHAPURAM DT.21.12.2010. ANNEXURE IV: COPY OF TREATMENT CERTIFICATE ISSUED BY THE SENIOR CONSULTANT OF GENERAL HOSPITAL, THIRUVANANTHAPURAM DT.18.12.11. RESPONDENTS' ANNEXURES: TRUE COPY P.S.TO JUDGE dsn ## **HARUN-UL-RASHID & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.2255 of 2011** **-------------------------------------------------DATED THIS THE 30[th] DAY OF JUNE, 2014** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J.** The appellant is the first respondent in O.P.(MV)No.1126/2004 on the file of Motor Accident Claims Tribunal, Thiruvananthapuram. The said claim petition, under Sec.166 of the Motor Vehicles Act, 1988, was filed by the 1[st] respondent-claimant who has sustained injuries in an accident occurred on 13.3.2004 at about 10 a.m., while he was riding a motor cycle bearing registration No.KL-01-U339 through the Pettah-Palkulangara Public Road. According to the claimant, when he reached Pettah-Kavaradi Junction, an autorickshaw bearing registration No.KL-01/L-4502 owned by the appellant and driven by the 2[nd] respondent came in a rash and negligent manner from the opposite direction and collided with the motor cycle, in which he was travelling. The claimant was thrown off in the road and he sustained injuries. The 3[rd] respondent is the insurer of the autorickshaw. The 4[th] respondent is the insurer of the motor cycle in which the claimant was travelling. According to the M.A.C.A.No.2255/11 -2- claimant, on the date of accident, he was aged 29 years and was earning a sum of 10,000/- per month, being proprietor of Delta₹ Fashions, Near Ayurveda College, Thiruvananthapuram. The total compensation claimed in the claim petition was 4 lakhs. ₹ 2. The appellant-owner and the 2[nd] respondent-driver filed joint written statement contending that, the accident happened due to the rash and negligent riding of the motor cycle by the claimant. It was further contended that the autorickshaw was validly insured with the 3[rd] respondent-insurer during the relevant time and even if any compensation has to be paid, it has to be paid by the 3[rd] respondent-insurer. 3. The 3[rd] respondent-insurer filed written statement contending, inter alia, that the injuries mentioned in the claim petition are exaggerated and the compensation claimed is exorbitant. The 3[rd] respondent-insurer admitted insurance coverage of the autorickshaw involved in the accident, but, contended that the 2[nd] respondent-driver was not having a valid and effective driving licence at the time of accident. Hence, the policy conditions are violated. The 4[th] respondent, the insurer of the motor cycle, filed written statement contending that the M.A.C.A.No.2255/11 -3- accident had happened solely due to the rash and negligent driving of the autorickshaw by the 2[nd] respondent-driver. 4. On the side of the claimant, the Doctor who has issued Ext.A10 disability certificate was examined as PW1 and Exts. A1 to A11 were marked. On the side of the appellant-owner and the 2[nd] respondent-driver, the copy of the driving licence was marked as Ext.B1. 5. The Tribunal came to the conclusion that the accident had happened as a result of the rash and negligent driving of the autorickshaw by the 2[nd] respondent-driver. Taking into account the injuries sustained by the claimant, the treatment undergone, etc., the Tribunal fixed the total compensation at 73,042/-,₹ together with interest @ 7.5% p.a. with effect from 16.6.2004 , the date of filing of the application, till realisation. Though, the Tribunal found that the autorickshaw involved in the accident was covered by an insurance policy issued by the 3[rd] respondentinsurer, taking note of the fact that the 2[nd] respondent-driver was not authorised to drive transport vehicles at the relevant time, the Tribunal ordered that on payment of the compensation amount the 3[rd] respondent-insurer is entitled to get reimbursement of the M.A.C.A.No.2255/11 -4- same from the appellant-owner. It is aggrieved by the award of the Motor Accident Claims Tribunal, Thiruvananthapuram, in O.P. (MV)No.1126/04, dated 8.4.2010, the appellant-owner is in appeal before this Court. 6. In spite of service of notice, none appeared for the 1[st] respondent-claimant. 7. We heard arguments of the learned counsel for the appellant, the learned counsel appearing for the 2[nd] respondent, the learned Standing Counsel appearing for the 3[rd] respondentinsurer of the autorickshaw and also the learned Standing Counsel appearing for the 4[th] respondent-insurer of the motor cycle. 8. The learned counsel for the appellant would contend that the quantum of compensation awarded by the Tribunal under different heads is highly exorbitant. As the motor cycle in which the claimant was the rider had a head-on collision with the autorickshaw driven by the 2[nd] respondent-driver, the Tribunal ought to have held that the accident occurred due to the contributory negligence of the claimant and that of the 2[nd] respondent-driver and the liability should have been fixed fiftyfifty, i.e., 50% each, thereby deducting 50% of the award amount M.A.C.A.No.2255/11 -5- for the negligence on the part of the claimant. It was further contended that, the 2[nd] respondent-driver was having a valid licence, Ext.B1, to drive an autorickshaw and the fact that he was not authorised at the time of accident to drive a transport vehicle is not sufficient to enable the 3[rd] respondent-insurer to avoid liability to the appellant-owner, who is the insured. 9. Per contra, the learned Standing Counsel appearing for respondents 3 and 4 would contend that no interference is called for in the award passed by the Tribunal. 10. We have considered the rival submissions made at the Bar. 11. First, we shall consider whether the quantum of compensation awarded to the claimant is exorbitant. As borne out from records, claimant was aged 29 years at the time of accident. Though, he claimed a monthly income of 10,000/- per month, in₹ the absence of any supporting materials, the Tribunal notionally fixed the monthly income at 2,000/-. The nature of the injuries₹ sustained by the claimant and the treatment he had undergone are evident from Ext.A5 wound certificate and also the documents M.A.C.A.No.2255/11 -6- produced as Exts.A7 to A10, which include the disability certificate issued by PW.1 certifying a permanent disability of 7%. Considering the nature of injuries sustained and the treatment undergone, the Tribunal granted a total compensation of ₹ 73,042/-, which includes ₹31,042/towards medical and incidental expenses covered by Ext.A11 bills, a sum of 20,400/-₹ towards permanent disability resulting in loss of earning power, ₹3000/- towards loss of earning for 1½ months, 10,000/- for₹ pain and sufferings, etc. We find absolutely no grounds to interfere with the quantum of compensation awarded to the claimant under different heads, which according to us is only a just and reasonable compensation that can be awarded to him. Therefore, we reject the contention of the appellant-owner that, the compensation awarded by the Tribunal is exorbitant. 12. Now, we shall consider the contention of the appellantowner that, the accident occurred due to contributory negligence of the claimant (rider of the motor cycle) and that of the 2[nd] respondent-driver and that the Tribunal should have fixed the liability at fifty-fifty, i.e., 50% each for the claimant and the 2[nd] M.A.C.A.No.2255/11 -7- respondent-driver. Relying on the judgment of the Apex Court in **T.O. Antony v. Karvarnan and others (2008 (3) SCC 748)** it was contended by the learned Counsel for the appellant that, in head-on collision cases the Tribunal should fix contributory negligence on the drivers of both the vehicles at fifty-fifty. 13. Though the appellant-owner and the 2[nd] respondentdriver have filed a joint written statement contending, inter alia, that the accident had happened due to the rash and negligent riding of the motor cycle by the claimant, they have not adduced any evidence to prove any contributory negligence on the part of the claimant. The Tribunal, taking note of Ext.A1 FIR, Ext.A2 scene mahazar, Ext.A3 and A4 mahazar relating to the vehicles involved in the accident and Ext.A6 charge sheet in Crime No.1135/2004 came to the conclusion that the accident had happened as a result of the rash and negligent driving of the autorickshaw by the 2[nd] respondent-driver. The Tribunal has also taken note of the fact that, the police has charge sheeted the 2[nd] respondent-driver for having committed offences under Sections 279, 337 and 338 of IPC and Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988. It was based on the evidence on M.A.C.A.No.2255/11 -8- record, the Tribunal came to the conclusion that the accident had happened as a result of the rash and negligent driving of the autorickshaw by the 2[nd] respondent-driver. 14. In **T.O. Antony’s case (supra)** the injured was the driver of a KSRTC bus who sustained injuries as a result of a head-on collision of the said KSRTC bus with a private stage carriage. Tribunal, based on the evidence on record, concluded that the accident happened due to the contributory negligence of the drivers of both the vehicles and the liability was fixed at fiftyfifty. Aggrieved by the award, the injured-KSRTC driver filed appeal, but this Court did not disturb the finding of the Tribunal regarding negligence. Dissatisfied with the said judgment, the injured-KSRTC driver filed appeal before the Apex Court by way of Special Leave and the Apex Court, on the facts and circumstances of the case, re-fixed the liability at 25% on the injured-KSRTC driver and 75% on the other driver. Therefore, the above judgment of the Apex Court will not come to the rescue of the appellant before us. 15. Now the remaining issue to be considered is whether the Tribunal was justified in absolving the 3[rd] respondent-insurer M.A.C.A.No.2255/11 -9- from the liability to the appellant-owner, who is the insured. According to the 3[rd] respondent-insurer, though the 2[nd] respondent-driver was having a valid license, Ext.B1, to drive an autorickshaw, he was not authorised to drive transport vehicles at the time of accident. It is not in dispute that, at the time of accident, the 2[nd] respondent-driver was not having the authorisation/badge to drive transport vehicles. But, we are unable to agree with the finding of the Tribunal that, the 3[rd] respondent-insurer can avoid liability to the appellant-insured merely for the reason that, the 2[nd] respondent-driver was not having at the time of accident an authorisation/badge to drive transport vehicle. Rule 6 of the Kerala Motor Vehicle Rules, 1989, deals with grant of authorisation to drive transport vehicles. Going by the 2[nd] proviso to Rule 6, no authorisation to drive transport vehicle shall be granted to a holder of driving license authorising him to drive only light motor vehicle, unless he satisfies the licensing authority that he had one year’s experience in driving light motor vehicles. But, going by the 3[rd] proviso to Rule 6, such experience for one year period shall not be necessary in the case M.A.C.A.No.2255/11 -10- of an applicant for authorisation to drive an autorickshaw or a motorised cycle rickshaw. The 3[rd] respondent-insurer has absolutely no case before the Tribunal that, at the time of accident, the 2[nd] respondent-driver was in any manner disqualified for grant of authorisation under Rule 6 to drive autorickshaw as transport vehicle. 16. In order to absolve from the liability, the insurer had to prove that the violation or breach of the policy condition was so fundamental and the breach has caused or contributed to the cause of the accident, as held by the Apex Court in **National Insurance Company v. Swaran Singh** [2004 (1) KLT 781 (SC)]. Following the principle laid down by the Apex Court in **Swaran Singh’s case (supra)** another Division Bench of this Court in **New India Assurance Co. Ltd. v. Balakrishnan** [2011 (4) KLT 412] held that, mere absence of badge for the driver cannot be held to be so sufficient to enable the insurer to avoid liability to the insured and that, the alleged omission to apply for and obtain badge is purely technical and cannot, in any way, be held to be a fundamental breach. 17. In such circumstances, we hold that, mere absence of M.A.C.A.No.2255/11 -11- an authorisation/badge for the 2[nd] respondent-driver to drive transport vehicles at the time of accident is not sufficient to absolve the 3[rd] respondent-insurer from the liability to the appellant-insured for payment of the compensation awarded to the claimant-injured. Therefore, the award dated 8.4.2010 of the Motor Accident Claims Tribunal, Thiruvananthapuram, in O.P.(MV) No.1126/04, to the extent it orders that the 3[rd] respondent-insurer is entitled to get reimbursement of the compensation amount paid to the claimant-injured from the appellant-insured, who was the owner of the autorickshaw, is set aside. In the result, the appeal is allowed in part to the extent indicated above and all other findings of the Tribunal are confirmed. No order as to costs. ## Sd/- **HARUN-UL-RASHID** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn