Shine Jose v. Swapna C.S. and Others

MACA NO. 1847 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **MACA NO. 1847 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1480/2009 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/2ND RESPONDENT IN OP(MV):** SHINE JOSE S/O.JOSE, H.NO.9/178, PULPARAMBIL HOUSE, MEMADANGU P.O., ARAKUZHA, MUVATTUPUZHA, ERNAKULAM-686 661 (OWNER OF THE PICK-UP VAN BEARING NO.KL-17/-8253). BY ADV C.P.SAJI ## **RESPONDENT/S:** 1 SWAPNA.C.S. AGED 30 YEARS W/O.MANOJ.C.K, RESIDING AT CHAKKALAKUNNEL HOUSE, KADALIKADU.P.O, VAZHAKULAM, ERNAKULAM, PIN-686 670. 2 SREESHNA MANOJ AGED 3 YEARS D/O.MANOJ.C.K, (DATE OF BIRTH:23.11.2005), REPRESENTED BY HIS MOTHER AND GUARDIAN, SWAPNA C.S, W/O.MANOJ.C.K, AGED 30 YEARS, RESIDING AT CHAKKALAKUNNEL HOUSE, KADALIKADU.P.O, VAZHAKULAM, ERNAKULAM, PIN-686 670. 3 KUMARAN.V.P. AGED 63 YEARS SON OF LATE AYYAPPAN, RESIDING AT CARE OF VASU.K.N, KUZITHADATHIL HOUSE, IYINI NADA ROAD, MARADU.P.O, PIN-682 304, ERNAKULAM DISTRICT. 4 KAMALAM.C.A., AGED 61 YEARS WIFE OF KUMARAN.V.P, RESIDING AT CARE OF VASU.K.N, KUZITHADATHIL HOUSE, IYINI NADA ROAD, MARADU.P.O, MACA NO. 1847 OF 2012 2 PIN-682 304, ERNAKULAM DISTRICT. 5 T.B.NOBI, AGED 32 YEARS S/O.BABY, RESIDING AT THERUKUNNEL HOUSE, KURUTHI KULAM BHAGHAM, MOOLAMATTOM, ARAKULAM VILLAGE, (DRIVER OF THE PICK-UP VAN BEARING NO.KL-17/E-8253), PIN.685 591. 6 THE NEW INDIA ASSURANCE COMPANY LIMITED (BRANCH MUVATTUPUZHA), 2ND FLOOR, OMANA BUILDING, JEWS STREET, NEAR PADMA THEATRE, ERNAKULAM DISTRICT.682018 7 ANOOP AGED 30 YEARS S/O.NATARAJAN, RESIDING AT KUZHIVELIL HOUSE, VAZHATTU, MANJALLOOR VILLAGE, VAZHAKULAM.686670 8 RAJEEV THUMBAI HOUSE, KANJOOR, PARAPPURAM, ALUVA, KANJOOR PO. PIN 683575 9 THE ORIENTAL INSURANCE COMPANY LIMITED METRO PALACE, OPP. NORTH RAILWAY STATION, ERNAKULAM. 682018 BY ADVS. T.K.AJITHKUMAR (VALATH) P.JACOB MATHEW K.JANARDHANAN MATHEWS JACOB (SR.) K.J.MANU RAJ THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1847 OF 2012 3 ## **JUDGMENT** The appellant was the 2[nd] respondent in OP(MV) No.1480/2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The petitioners 1 to 4 and the respondents 1 and 3 to 6 are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Manoj (deceased), husband of the 1[st] petitioner, father of the 2[nd] petitioner and son of the petitioners 3 and 4. It was their case that, on 05.05.2009, while the deceased was travelling in an autorikshaw, a pickup van bearing registration No.KL/17-E.8253 (van), driven by the 1[st] respondent in a negligent manner, hit the autorikshaw. The deceased sustained fatal injuries and lost his life instantaneously. The deceased was an agriculturist. The petitioners were the dependents of the deceased. The van 4 MACA NO. 1847 OF 2012 was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. The autorikshaw was driven, owned and insured with the respondents 4 to 6, respectively. Hence, the petitioners claimed compensation from the respondents. 3. The 3[rd] respondent contested the proceeding by filing a written statement, interalia, contending that the 1[st] respondent did not hold a valid driving license to drive the van. 4. The Tribunal, after appreciating the pleadings and materials on record, allowed the claim petition, but entered a finding that the 2[nd] respondent had violated the insurance policy conditions. Accordingly, the Tribunal permitted the petitioners to recover an amount of Rs.6,66,900/- with interest and proportionate cost from the 3[rd] respondent. However, the 3[rd] respondent was permitted to pay the compensation and recover it from the 2[nd] respondent. 5. Aggrieved by the direction in the impugned award, MACA NO. 1847 OF 2012 5 permitting the 3[rd] respondent to pay the compensation amount and recover it from the 2[nd] respondent, the 2[nd] respondent is in appeal. 6. Heard; Sri.C.P. Saji, the learned counsel appearing for the appellant/2[nd] respondent, Sri.Mathews Jacob, the learned Senior counsel appearing for the 6[th] respondent/ 3[rd] respondent/insurer, Sri. P. Jacob Mathew, the learned counsel appearing for the 9[th] respondent/insurer and Sri.K.Janardhanan, the learned counsel appearing for the respondents 1 to 4. 7. The sole point that emanates for consideration in the appeal is whether the direction in the impugned award, permitting the 6[th] respondent/3[rd] respondent insurer to pay the compensation amount and recover it from the appellant/2[nd] respondent is sustainable in law. 8. The specific case of the 6[th] respondent/insurer in the written statement was that the 5[th] respondent/1[st] respondent driver did not have a valid driving license. Even though the 6[th] respondent had filed IA No.5253/2010 MACA NO. 1847 OF 2012 6 before the Tribunal, to direct the 5[th] respondent to produce his driving license and badge, he did not produce the same. In the above circumstances, the Tribunal drew adverse inference against the appellant and the 5[th] respondent, and permitted the 6[th] respondent/insurer to pay the compensation amount and recover it from the appellant/2[nd] respondent. 9. The 5[th] respondent has now produced Exts.B1 to B3 to prove that he had a valid driving license as on the date of the accident and that the van has a gross weight of only 2750 kilograms. Hence, in the light of the law laid down by the Honourable Supreme Court in **Mukund Dewangon vs. Oriental Insurance Company Limited** [2017 (3) KLT 1000 (SC)], there is no requirement to have a badge to drive the van. 10. On a perusal on Ext.B1, it is seen that the 5[th] respondent had a valid driving license for the period from 25.01.2007 to 24.01.2012 to drive a light motor vehicle, medium goods vehicle and heavy goods vehicle. Thus, as MACA NO. 1847 OF 2012 7 on the date of accident i.e., on 05.05.2009, the 5[th] respondent had a valid driving license to drive a medium goods vehicle. Therefore, the contention of the 6[th] respondent insurer, that the 5[th] respondent did not have a valid driving license is found to be incorrect. Nevertheless, in view of the fact that the appellant and the 5[th] respondent were not diligent in prosecuting the claim petition before the Tribunal and have unnecessarily dragged the 6[th] respondent to this Court, I am of the firm view that the appeal can be allowed by setting aside the impugned direction, but on condition that the amount that has been deposited by the appellant before the Tribunal as a pre-condition to file the appeal (as per DD No.490325 dated 28.02.2022 for an amount of Rs.25,000/-) has to be paid as cost to the 6[th] respondent/insurer. In the result, the appeal is allowed by setting aside the direction in the impugned award, permitting the 6[th] respondent/3[rd] respondent/insurer to recover the compensation amount from the appellant/2[nd] respondent, MACA NO. 1847 OF 2012 8 but subject to the condition that the 6[th] respondent/insurer would be entitled to an amount of Rs.25,000/- that has been deposited before the Tribunal. If the 5[th] respondent files an application before the Tribunal, the same shall be allowed and the amount ordered above shall be disbursed to the 6[th] respondent/insurer as cost. With the above observation this appeal is allowed. Needless to mention that, in view of the allowing of the claim petition, the bank guarantee that has been furnished by the appellant shall be returned to him in accordance with law, and the originals of Exts.B1 to B3 shall be returned to the 5[th] respondent in accordance with law and on substitution of the originals with the certified copies. sd/- **C.S.DIAS JUDGE** rkc/15.03.22