Parappanangadi Motor Transport Co-operative Society v. Oriental Insurance Co. Ltd. & Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936** **MACA.No. 1443 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 763/2006 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR DATED 27-12-2008** ## **APPELLANT/1ST RESPONDENT:** ## **-----------------------------** **PARAPPANANGADI MOTOR TRANSPORT CO-OPERAT CO-OPERATIVE SOCIETY, PARAPPANANGADI POST MALAPPURAM DISTRICT, PIN-676303 REPRESENTED BY ITS SECRETARY.** **BY ADVS.SRI.K.P.SUDHEER SRI.SUMODH MADHAVAN NAIR** ## **RESPONDENTS/RESPONDENTS 3 & 2:** **----------------------------------** **1. THE ORIENTAL INSURANCE CO.LTD.,& ANOTHER BRANCH OFFICE, TIRUR P.O. - 676 101 MALAPPURAM DISTRICT.** **2. ABDUL SAMEER, S/O.KUNHIMOIDEEN, KONDANATH HOUSE NANNAMBRA P.O. - 676320, KUNDOOR, MALAPPURAM DISTRICT.** **R,R1 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.1443/2011** ## APPENDIX ## **PETITIONER(S) EXHIBITS** **ANNEXURE A1: TRUE COPY OF HIRE PURCHASE AGREEMENT ENTERED INTO BETWEEN THE APPELLANT AND THE 2ND RESPONDENT DATED 27.09.2004. ANNEXURE A2: TRUE COPY OF REVENUE RECOVERY NOTICE DATED 23.06.2011 (TALUK FILE NO.2011/148/10/600) ISSUED BY DEPUTY TAHSILDAR (REVENUE RECOVERY), TIRURANGADI.** ## **RESPONDENTS' EXHIBITS :NIL** **TRUE COPY** **P.A. TO JUDGE** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A. No.1443 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 20[th] day of October 2014 ## **JUDGMENT** ## **Ramachandran Nair, J.,** This appeal is filed by the owner of the vehicle involved in the accident, aggrieved by the directions issued by the Tribunal permitting the Insurance Company to pay the amount and recover it from the owner. 2. The short point that arises is as to whether the absence of a badge for the driver can be a ground for the Insurance Company to dispute liability on the further plea that there is a violation of the policy, with the aid of Section 149(2) of the Motor Vehicles Act 1988. 3. Learned Counsel for the appellant submitted that the entire legal issues have been considered by a Division Bench of this Court in the decision reported in _**New India Assurance Co. Ltd. v. Balakrishnan (2011 (4) KLT 412)**_ which has been followed by the learned Single Judge in the later decision reported in _**Kuruvila v. Jijo Joseph (2013 (4) KLT 700)**_ . M.A.C.A. No.1443 of 2011 :2: 4. The vehicle involved is an autorikshaw which was driven by the 2[nd] respondent, before the Tribunal. The accident occurred on 25.6.2006 at about 12.45 p.m. The 2[nd] petitioner in the application before the Tribunal was travelling with Mohammed Nishal, a child aged 10 months in the said autorikshaw from Chemmad towards their house at Kundoor. It was alleged that the autorikshaw was driven in a rash and negligent manner by the driver. When it reached the place Kundoor Angadi, in the road Mangalasser Thazepadom, it suddenly fell into a ditch and got tilted upside down. Mohamed Nishal who was travelling along the second petitioner fell down on the road and he sustained serious injuries. He was taken to M.K.Haji Hospital ad thereafter to MIMS hospital, Calicut for treatment, but he succumbed to the injuries. 5. The claimants therefore, filed an application seeking compensation. 6. The first and second respondents in the application were exparte before the Tribunal. It was contended by the Insurance Company that the driver was not having a valid licence and a badge. Ext.A8 charge sheet filed by the Police shows that he was having a driving license but not having a badge and Ext.A7 is the driving licence issued by the Sub Regional Transport Officer. On the M.A.C.A. No.1443 of 2011 :3: basis that the 2[nd] respondent driver possessed driving licence on the date of the accident but he was not having a badge on the said date, it was held by the Tribunal that the insurance Company is not liable to pay any amount towards compensation. Finally the Company was directed to deposit the amount before the Tribunal and it was directed that the Insurance company can recover it from the 1[st] and 2[nd] respondents. 7. The appellant herein is the registered owner of the vehicle. After hearing the learned counsel on both sides, we are of the view that in the light of the principles explained by a Division Bench of this Court reported in _**New India Assurance Co. Ltd. v. Balakrishnan (2011(4) KLT 412)**_ on the very same point the appellant is entitled to succeed. The very same aspect was considered from paragraph 24 onwards. That was also a case which involved an autorikshaw. By relying upon, an earlier decision of a Division Bench in _**P.T.Moidu v.**_ ## _**The Oriental Insurance Company Ltd. & Ors (ILR 2007 (4) Ker**_ _**790),**_ it was held in by the Division Bench in paragraph 21 that “mere absence of a badge for the driver cannot be held to be sufficient to enable the insurer to avoid liability to the insured”. The Division Bench after considering Rule 6 of the Kerala Motor Vehicle Rules further held that it was only a technical violation. Going by the said rule, and its two M.A.C.A. No.1443 of 2011 :4: provisos, experience for one year is not required when the application is to drive a passenger autorikshaw. The decision of the Supreme Court in **National Insurance Company V. Swaran Singh (2004 (1) KLT 781),** especially paragraph 102 (vi) was relied on by the Division Bench, which we extract hereunder:- _“102(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 of 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 defences available to the insurer under S.149(2) of the Act.”_ 8. Therefore, the Company will have to prove that the breach was so fundamental and the breach had caused or contributed to the accident. 9. In a later decision, reported in _**Kuruvila v. Jijo Joseph (2013(4) KLT 700)**_ various decisions of this Court and Apex court have been considered by the learned single Judge. We extract paragraph 29 and 32 of the said judgment. M.A.C.A. No.1443 of 2011 :5: _“29. Learned counsel for the insured have brought to my notice the unreported judgment (dated 20.8.2013) of the Division Bench of this Court, in M.A.C.A.No. 105 of 2012. That was an appeal preferred by the insured against the decision of the Tribunal. In that case, the offending vehicle was a transport vehicle. The driver had no badge to drive a transport vehicle but, had a license. The Tribunal allowed the insurance company to recover the amount from the insured on payment of the same to the claimant. The Division bench referred to paragraph 102 (clause vi) of National Insurance Company Ltd. v. Swaran Singh (supra), P.T.Moidu v. The Oriental Insurance Company Ltd. & Ors. (supra), New India Assurance Co. Ltd. v. Balakrishnan (supra) and R.6 of the Kerala Motor Vehicles Rules, 1989 as also S.9(4) of the Act. In paragraph 16, the Division bench held that the Kerala rules do not prescribe the conduct of another driving test before the issue of authorisation to drive the transport vehicle. In paragraph 17, Division bench referred to and distinguished the decisions in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Anr.(supra), National Insurance Company Ltd. v. Kusum Rai and Ors.(supra) and New India Assurance Co. Ltd. v. Prabhu Lal (2008) I SCC 696) as those cases were not dealing with R.6 of the Kerala Motor Vehicles Rules. The Division bench held that those decisions do not overrule the decision of the Division Bench in P.T.Moidu v. The Oriental Insurance Company Ltd., & Ors. (supra). In paragraph 18, it was held that the driver in that case had a licence to drive a light motor vehicle (the class to which the offending vehicle belonged) but there was no badge authorising him to drive a transport vehicle (the driver in that case had obtained the badge after the accident). The Division Bench took the view that there was no case for the insurer that the driver was not qualified to apply_ ## M.A.C.A. No.1443 of 2011 ## :6: _for a badge to drive transport vehicle and hence the omission to apply for and obtain a badge was purely technical and cannot be said to be a fundamental breach offending the main purpose rules as insisted in paragraph 102 (clause vi) of National Insurance Company Ltd v. Swaran Singh (supra). The accident could not also be attributed to want of badge to drive a transport vehicle. The appeal was allowed and the right of recovery given to the insurer was set aside”_ . _“32. Though learned counsel for the insurers in these appeals have taken my attention to National Insurance Company Ltd. v. Kusum Rai & Ors. (supra) and New India Assurance Co. Ltd. v. Prabhu Lal (supra), those decisions cannot be relied on for the purpose of either exonerating the insurer or giving the insurer a right of recovery for the reasons that the Division Bench of this Court in the judgment dated 20.8.2013 in M.A.C.A. No. 105 of 2012 has distinguished those decisions and held that those decisions do not apply to the situation in this State where R.6 of the Kerala Motor Vehicles Rules applies. I cannot also follow the decision in M.A.C.A.No. 2366 of 2010 (supra) since it is not clear how the driving license (in that case) was not valid, the decision in P.T.Moidu v. The Oriental Insurance Company Ltd. & Ors. (supra) was not considered, the consequence of absence of a badge in the light of the decision in National Insurance Company Ltd. v. Swaran Singh (supra) was not considered, the Division Bench did not doubt the Bench decisions in P.T.Moidu v. The Oriental Insurance Company Ltd., & Ors.(supra) and New India Assurance Co. Ltd. v. Balakrishnan (supra) and as the decision in M.A.C.A. No. 2366 of 2010 does not lay down any law. The decision in M.A.C.A. No.2366 of 2010 has to be confined to the facts of that case”._ M.A.C.A. No.1443 of 2011 :7: Those are also cases where the allegation is that there was no badge for the driver. 10. Learned counsel for the Insurance company stated that offending vehicle was a commercial vehicle and the driver was having a driving license to drive the vehicle and there was no authorisation to drive a commercial vehicle. Reliance is placed on the decision of the Apex Court in _**New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Another (2008 (3) TAC 20), Oriental Insurance Co. Ltd. V. Zaharulnisha and Others (2008 (2) TAC 801)**_ , and _**Margappa Shethappa Vadar v. M/s.Proctor and Gamble India and Another (2008 (3) TAC 25).**_ 11. In the light of the 3 Judge Bench Judgment in **Swaran Singh's case** , it is up to the insurer to show that the breach is so fundamental. As far as the judgment of the Apex Court in the decision reported in _**New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Another (2008 (3) T.A.C. 20 (S.C.)**_ is concerned, the said decision also was considered by another Division Bench in the judgment in M.A.C.A.No.105/2012. These decisions have been discussed in paragraph 29 of _**Kuruvila v. Jijo**_ M.A.C.A. No.1443 of 2011 :8: _**Joseph**_ (supra) which we have already referred to earlier. It was held by the Division Bench in M.A.C.A. No. 105/2012 that, Rule 6 of Kerala Motor Vehicles Rules has not come up for consideration in the said case. The facts of the case in **Oriental Insurance Co. Ltd. v. Zaharulnisha and Others 2008 (2) TAC 801 (S.C.),** show that therein the driver of the scooter had no licence to drive a two wheeler. His licence was for driving HMV only. The Apex Court in the light of the said factual position held that the Insurance Company is not liable. Herein the facts are otherwise and hence, it will not be of any assistance. In the light of the above, we allow the appeal. We are of the view that the Insurance company is liable to satisfy the award. The appellant is exonerated from the liability. No costs. **-** Sd/ **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd/- **P.V.ASHA (JUDGE)** AL/- True copy P.A to Judge