Roy Joseph v. Molly Thomas and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931** **MACA.No. 2889 of 2009()** **----------------------OPMV.408/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** **....................** ## **APPELLANT(S): IST RESPONDENT:** **-----------------------------------------------------** **ROY JOSEPH,** **AGED 34 YEARS,S/O.OUSEPH,MUTHUPLACKAL HOUSE, PALORKAVU P.O.,THEKKEMALA KARA,PERUVANTHANAM VILLAGE,PEERMEDU,IDDUKKI DISTRICT.** **BY ADVS. MR.K.S.HARIHARAPUTHRAN, MR.GEORGE MATHEW.** **RESPONDENT(S): CLAIMANT & 2ND RESPONDENT:** **---------------------------------------------------------------------------** **1. MOLLY THOMAS, CHULAYILAPLACKAL,NOW RESIDING AT PLAMPARAMBIL HOUSE,EDAKKUNNAM VILLAGE, VELICHIYANIKARA,PARATHODU.** **2. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE,P.B.NO.124, CHEERAANVELI BUILDING,N.H.220, KANJIRAPPALLY.** **R2 BY ADV. MR.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2010 ALONG WITH MACA NO. 2890 OF 2009 AND MACA NO. 2891 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **M.N. KRISHNAN, J.** ........................................... M.A.C.A.Nos.2889,2890&2891OF 2009 ............................................. Dated this the 24[th] day of February, 2010. ## **J U D G M E N T** These appeals are preferred against the award of the Claims Tribunal, Pala in OP(MV)Nos.408,409 and 518 of 2008. The brief facts necessary for the disposal of the appeals are stated as follows: 2. The appellant herein is the first respondent in the claim petition who is the owner cum driver of an auto rickshaw bearing Registration No.KL 37/1498. The allegations are to the effect that the driver lost control of the vehicle on account of his rash and negligent driving resulting in injuries to the occupants of the auto rickshaw. They moved an application for compensation and the learned tribunal granted a sum of Rs.43,950/= in OP(MV)408/2008, Rs.33,650/= in O.P.(MV)No.409/2008 and Rs.7,500/= in OP (MV)No.518/2008 with 9% interest and also with a further direction that as the owner cum driver did not have the valid driving licence, ordered reimbursement of the amount paid by the insurance company on satisfaction of the : 2 : M.A.C.A.Nos.2889,2890&2891OF 2009 award by the insurance company. Against that decision, the owner cum driver has come up in appeals challenging the order of reimbursement and also the quantum awarded in each case. 3. Heard the learned counsel for the appellant as well as the insurance company. Let me first consider about the order of the tribunal directing the owner to reimburse the amount paid by the insurance company. Admittedly, auto rickshaw was a passenger carrying vehicle. The materials would reveal that the auto rickshaw driver did not have any valid and effective driving licence on the date of the accident. It is argued before me that there was a driving licence with the driver prior to the accident and that, that has been renewed subsequently and therefore, it should be deemed to have a valid driving licence and so the order made by the tribunal for recovery has to be interfered with. Under Section 3 of the Motor Vehicles Act, a person who drives a vehicle is expected to hold a valid driving licnece to drive a particular class of vehicle which he drives and similarly, there are other provisions which say that if licence expires, it has to be renewed within a period of 30 days or in other : 3 : M.A.C.A.Nos.2889,2890&2891OF 2009 words, it is the grace period granted by the statute. Suppose licence is renewed after the grace period of 30 days, it is the settled position that the renewal will have the effect only from the date of such renewal. 4. I am fortified by the decision of the Apex Court in the decision reported in **National Insurance Co.Ltd, v. Vidhyadhar Mahariwala** (2008 (12) SCC 701). It was a case where the court considered this question and held that the licence should have been renewed within the period of 30 days and if it is not done, it will not have any retrospective effect and it will take effect only from the date of renewal. When it is so, it has to be held that the driver did not have any valid driving licence on the date of the accident. So far as it relates to the principles laid down **National Insurance Co. Ltd. v. Swaran Singh** (2004 (1) KLT 781 (SC) also it has to be held that here the accident mainly took place on account of the act of the owner cum driver and there was not a third party who caused the accident. Further, the first respondent is the owner cum driver of the auto rickshaw. So, it can be seen that all the necessary ingredients to constitute a breach is available in this case . : 4 : M.A.C.A.Nos.2889,2890&2891OF 2009 So, I do not find any ground to interfere with the decision of the tribunal in making the order for recovery. 5. The learned counsel then argues on the quantum. A perusal of the order would show that the claimant in OP. (MV)No.408/2008 had a lacerated wound on the right pinna, heamatoma right maxillalry area and traumatic brain injury. She had spent Rs.21,450/= for medical expenses. After going through the award under each head, it can be seen that only very reasonable amount has been awarded under all other heads and his income is taken only at Rs.2,000/= which cannot be said to be high by any stretch of imagination in the year 2007. Therefore the quantum does not call for any interference. 6. In OP.(MV)No.409/2008, the claimant sustained a lacerated wound on the right hand, fracture of the right clavicle and fracture of third rib on the right side. He was inpatient in a hospital for 6 days. His income was also fixed at Rs.2,000/= and he had spent Rs.4,650/= towards medical expenses. The Tribunal has only awarded a reasonable compensation of Rs.33,650/= which is just and reasonable and that also does not call for any interference. : 5 : M.A.C.A.Nos.2889,2890&2891OF 2009 7. So far as O.P.(MV)No.518/2008 is concerned, it is seen that the claimant had sustained a contusion on the right shoulder and neck and a cervical sprain injury. The tribunal has only awarded a global compensation of Rs.7,500/= which also cannot be said to be on the higher side. Therefore the award does not call for any interference so far as the quantum is concerned. 8. The tribunal has awarded interest at the rate of 9%. Way back in 2006, the Supreme Court held that the reasonable interest considering the inflationary rate would be 7.5%. I feel that it will suffice and therefore the interest is reduced from 9% to 7.5%. Lastly I feel that a reasonable time can be granted for paying the amount back to the insurance company and the insurance company shall not pursue the forcible remedy of revenue recovery even if initiated for a period of 4 months. I also make it clear that from the amount deposited, the interest portion is reduced to 7.5% and the balance amount has to be reimbursed to the insurance company. In case amount is withdrawn, the insurance company is directed to recover the balance of 1.5% from the claimants. : 6 : ## M.A.C.A.Nos.2889,2890&2891OF 2009 9. Therefore the appeals are disposed of as follows: 1. The finding that the insurance company is entitled to get reimbursement from the owner is sustained. 2. The amount awarded by the tribunal in all the cases are sustained and confirmed. 3. The rate of interest is reduced from 9% to 7.5%. 4. The owner cum driver is granted 4 months’ time for making repayment to the insurance company. 5. If the amount is in deposit, the balance amount of interest can be reimbursed to the insurance company. If it is already withdrawn by the claimant, the insurance company is given the right to recover the amount in excess of 7.5% interest from the claimants. Disposed of accordingly. ## **M.N. KRISHNAN, JUDGE** ## **cl** : 7 : M.A.C.A.Nos.2889,2890&2891OF 2009