Sunil Kumar v. Satheesh Babu, Thampi and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936 MACA.No.1016 of 2011 (F) ------------------------------AGAINST THE AWARD IN OPMV 468/2007 of MACT, IRINJALAKUDA -------- APPELLANT/PETITIONER: ---------------------------- SUNIL KUMAR, AGED 39 YEARS, S/O.PARAMESWARAN, NADUMPARAMBIL, P.O.AZHIKODE KANNERACHAL, KODUNGALLUR. BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENTS/RESPONDENTS: ----------------------------------- 1. SATHEESH BABU, S/O.KESAVAN NAIR, SREERUDRA, PLOT NO.259, HILL GARDEN P.O.KUTTANELLUR, THRISSUR DISTRICT, PIN-680014. 2. THAMPI, S/O.PADMANABHAN, KAVUNGAL HOUSE, KARA P.O., KATHIYALAM KODUNGALLUR, THRISSUR DISTRICT, PIN-680671 3. UNITED INDIA INSURANCE CO. LTD., ROUND NORTH, THRISSUR, PIN-680001. R1 BY ADV. SRI.P.V.JAYACHANDRAN R3 BY ADV. SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = M.A.C.A. No. 1016 of 2011** **= = = = = = = = = = = = = = = = = = =** Dated this the 7[th] day of April, 2014 ## **JUDGMENT** The appellant had sustained injuries in a motor accident that occurred on 15.3.2007 involving a motor cycle driven by the second respondent, owned by the first respondent and insured with the third respondent. He had filed a petition claiming compensation on account of the injuries sustained in the accident before the Motor Accidents Claims Tribunal, Irinjalakuda. The learned Tribunal, after considering the matter, found that the accident had occurred due to the rash and negligent driving of the vehicle by the second respondent and awarded a total compensation of `18,260/- under various heads as follows: MACA 1016/11 2 Loss of earnings : `4,000/Medical and miscellaneous expenses : ` 260/Bystander's expenses : ` 500/Transportation expenses : ` 500/Pain and sufferings :`10,000/Loss of amenities : ` 3,000/- The respondents 1 and 2 were held liable for paying the compensation to the appellant. The third respondent was exonerated from liability, even though Insurance Policy was admitted, on the ground that the second respondent was not holding a driving licence for driving the motor cycle at the time of accident. Dissatisfied with the quantum of compensation awarded and also contending that the third respondent Insurance Company is liable to pay the compensation to the appellant, even if the second respondent driver was not holding a valid driving licence at the time of accident. MACA 1016/11 3 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. No representation for the respondents 1 and 2 despite serving notice on them. 3. Learned counsel for the appellant submits that the appellant had sustained serious injuries in the accident. But, compensation awarded by the Tribunal is very low. Considering the fracture suffered by the appellant, he is entitled to more compensation. The third respondent had admitted the insurance cover for the vehicle involved in the accident. Even if the second respondent, driver of the motor cycle, was not holding a driving licence, the Tribunal cannot exonerate the Insurance Company. The Insurance Company is liable to pay the amount awarded to the appellant and they can be permitted to recover the same from the insured, the owner of the vehicle. Instead, the Tribunal exonerated the Insurance Company and directed to pay the amount by the respondents 1 and 2. This is illegal, MACA 1016/11 4 contends the learned counsel for the appellant. 4. Learned counsel for the third respondent, on the contrary, submits that the appellant was amply compensated by the Tribunal. In the light of the evidence on record, no enhancement of compensation is called for in this case. The motor cycle involved in the accident was covered by a valid Insurance Policy at the time of accident. But, the second respondent was not holding a valid driving licence for driving the motor cycle at the time of accident. Therefore, the Insurance Company is not liable to indemnify the first respondent insured and to pay the compensation to the appellant, she further contends. 5. The appellant was taken to Taluk Headquarters Hospital, Kodungallur, after the accident. He had sustained fracture of right navicular bone and abrasions on the right knee and ankle. He was treated with application of below knee slab. He had undergone inpatient treatment from 15.3.2007 to 20.3.2007. The slab was removed on MACA 1016/11 5 9.4.2007. The appellant was aged 36 and was a coolie at the time of accident. The Tribunal had fixed his monthly income at `2,000/- in the absence of evidence and awarded `4,000/- towards compensation for loss of earnings for a period of two months. The accident had occurred on 15.3.2007. Therefore, it can reasonably be found, based on probabilities, that the appellant was earning a monthly income of `3,000/-. On considering the injuries and treatments, this Court does not find any reason to interfere with the finding of the Tribunal that he could not earn for a period of two months after the accident. Therefore, `4,000/- awarded under the head of loss of earnings is enhanced to `6,000/-. The Tribunal awarded `10,000/- as compensation for pain and sufferings. On considering the injuries including fracture suffered and the treatments, this is enhanced to `12,000/-. The Tribunal awarded ` 3,000/as compensation for loss of amenities etc. The appellant had suffered a fracture of navicular bone. This would have MACA 1016/11 6 caused considerable loss of amenities to him after the accident. On considering them, `3,000/- allowed by the Tribunal under this head is enhanced to `6,000/-. This Court does not find any reason to interfere with the amounts awarded by the Tribunal under other heads. Therefore, the appellant is entitled to `7,000/- (Rupees seven thousand only) over and above the amount already awarded by the Tribunal. The said amount of `7,000/- shall carry interest at the rate of 9% per annum from the date of filing of the petition till realisation. 6. Learned counsel for the third respondent submits that in view of the Proviso to Sub-section (4) of Section 149 of the Motor Vehicles Act, even if the third respondent is liable to pay the amount to the appellant, they are entitled to recover the same from the first respondent who is the insured in this case. Such a recovery of the amount from the first respondent cannot be permitted in this case. Learned Tribunal had not entered a finding that the absence MACA 1016/11 7 of driving licence for the second respondent had contributed to the cause of the accident. Moreover, the third respondent Insurance Company had not even made an attempt to prove that the absence of driving licence had contributed to the cause of the accident. 7. The Honourable Supreme Court had considered the consequence of the absence of driving licence in **National Insurance Company Ltd. v. Swaran Singh [2004(1) KLT 781 (SC)].** The law laid down by the Honourable Supreme Court contains in paragraph 102 (vi) of the judgment which reads as follows:- “ (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.” MACA 1016/11 8 8. In the light of this ruling, unless the Insurance Company is able to prove that the absence of driving licence has contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured. Here, no such evidence had been adduced by the Insurance Company and no such finding had been entered by the Tribunal as already found. Therefore, the third respondent is liable to indemnify the first respondent in this case. 9. Learned counsel for the third respondent now submits that the third respondent may be granted an opportunity to adduce evidence in order to prove that the absence of driving licence for the second respondent had contributed to the cause of the accident, by way of remanding that question alone to the Tribunal. It is too late in the day to make such a prayer before this Court. The law in respect of this matter had been declared by the Honourable Supreme Court in 2004. The claim for compensation in this case had been preferred in 2007 and MACA 1016/11 9 the learned Tribunal had disposed of that claim by its award on 30.11.2010. Therefore, in the light of these facts, the request now made by the learned counsel for the third respondent cannot be accepted. 10. Since the third respondent is liable to indemnify the first respondent, they are liable to pay the compensation to the appellant. The third respondent is directed to deposit the amount of compensation within two months from today. This appeal is allowed in part as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks/kns. //True Copy// P. A. To Judge MACA 1016/11 10