Sunil Kumar v. Soman K.M., Puthupparambil Varghese @ Shibu and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936** **MACA.No. 714 of 2010 ( ) -------------------------** **AGAINST THE AWARD IN OPMV 1477/2001 of M.A.C.T., THALASSERY DATED 07-12-2006** **APPELLANT(S)/1ST RESPONDENT.:** **--------------------------------------------------------** **SUNIL KUMAR, S/O. M.CHANDRASEKHARAN NAIR THALIPARAMBIL VEEDU, ARIPRAD, PANATHUR P.O. HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV. SRI.JAWAHAR JOSE** ## **RESPONDENT(S)/CLAIMANT & RESPONDENTS 2&3.:** **----------------------------------------------** **1. SOMAN K.M., S/O. LATE KUNHAMBU, KOROM AMSOM AND DESOM, P.O.CHALAKODE, PAYYANNUR TALIPARAMBA TALUK, KANNUR DISTRICT.** **2. PUTHUPARAMBIL VARGHESE @ SHIBU, S/O. ANTONY, NEELARINGA, VAYAKKARA AMSOM TALIPARAMBA TALUK, KANNUR DISTRICT.** **3. THE ORIENTAL INSURANCE COMPANY LTD., CITY POINT BUILDINGS, PRESS CLUB JUNCTION, M.G.ROAD, KASARAGODE.** **R1 BY ADV. SRI.M.V.AMARESAN R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN R2 BY ADV. SRI.MAHESH V RAMAKRISHNAN R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2014, ALONG WITH MACA NO.717 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA 714/10** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **EXT.B1 : COPY OF LETTER AND AGREEMENT. EXT.B2 : COPY OF DRIVING LICENSE. EXT.B3 : COPY OF JUDGMENT IN WP(C) 31718/2009. EXT.B4 : COPY OF REVENUE RECOVERY NOTICE. EXT.B5 : COPY OF REVENUE RECOVERY NOTICE. //TRUE COPY// PA TO JUDGE.** ## **jg** ## THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ. .................................................................... MACA Nos.714 & 717 of 2010, I.A.No.1067 of 2010 in MACA No.714 of 2010, and I.A.No.1080 of 2010 in MACA No.717 of 2010. .................................................................... Dated this the 2[nd] day of December, 2014. ## J U D G M E N T ## Thottathil B.Radhakrishnan, J. - 1.We have heard the learned counsel for the appellant and the learned counsel for the respondents in these appeals. - 2.These appeals arise from two claim petitions filed by two persons who were injured in one accident. Both the claim petitions were jointly tried and evidence was recorded accordingly. - 3.The appellant is the registered owner of the vehicle. That was found to be the offending one in relation to a road traffic accident on the basis of which compensation has been awarded by the Motor Accidents Claims Tribunal. The Tribunal directed the insurer to satisfy the award and gave it the freedom to recover the same from the registered owner (insured) and the driver. The registered owner is in appeal. MACAs 714&717/10 -2- 4.The captioned interlocutory applications are filed seeking admission of additional evidence in both the appeals. There are five documents produced along with I.A.No.1067 of 2010 in MACA No.714 of 2010 and there are three documents placed along with I.A.No.1080 of 2010 in MACA 717 of 2010. The three documents produced along with I.A.No.1080 of 2010 are also among those produced along with I.A.No.1067 of 2010. Therefore, it would be sufficient for us to consider whether those applications can be allowed and the documents produced along with I.A.No.1067 of 2010 can be admitted as additional evidence to be marked as Exts.B1 to B5 following the documents admitted to evidence by the learned Tribunal. - 5.The learned counsel for the appellant with the materials on record, including the affidavits filed in support of the applications seeking condonation of delay, which stand allowed, argued that the appellant at the relevant time during trial was posted in IndoBangladesh border in Thripura in connection with his duties in the MACAs 714&717/10 -3- Border Security Force. He said that there was no opportunity for the appellant to contest the proceedings before the Tribunal, and therefore, ends of justice require that the captioned interlocutory applications seeking admission of additional evidence be allowed. On admission of such materials on record, it is pointed out that the appeals deserve only to be allowed because the additional evidences would show that the driver had a valid licence and that the registered owner had parted with the title and possession to the vehicle, and the second respondent, who is shown to be the driver, had obtained hire purchase services of a financier. - 6.Per contra, the learned counsel for the insurer argued that the materials now sought to be introduced also did not show that the driver had a badge in terms of the Motor Vehicles Rules enabling him to drive a transport vehicle, and therefore, there is a violation of the policy conditions. - 7.Having regard to the reasons stated in the affidavits accompanying the interlocutory applications seeking admission of MACAs 714&717/10 -4- additional evidence, we are satisfied that sufficient cause has been shown for non-production of those evidences before the court of first instance, and that the captioned interlocutory applications for admission of additional evidence need to be allowed. Accordingly, we allow those interlocutory applications and receive and admit to evidence the materials produced therewith. The documents produced along with I.A.No.1067 of 2010 in MACA No.714 of 2010 are admitted as additional evidence and they are marked as Exts.B1 to B5 following the marking of documents before the Tribunal. Such evidence will be for the purpose of deciding both the appeals arising from the two claim petitions. - 8.With the aforesaid documents on record, it is clear that the material evidence disclosed that the registered owner, the appellant, had transferred the possession of the vehicle to the second respondent in the original petition and he had obtained hire purchase facilities from a financier as if he is a true owner. That position notwithstanding, the driving licence of the second MACAs 714&717/10 -5- respondent is also on record. That shows that he possessed a valid licence at the time of the accident. We are not impressed that the availability or otherwise of a badge to drive a transport vehicle is of any consequence. We say this for two reasons. In its first written statement before the Tribunal the insurer did not mention anything about the licence of the driver of the vehicle. All that it had done was to plead that there was a valid insurance cover and the accident occurred due to the negligent driving of another vehicle, which hit the vehicle in question. The details regarding the injuries and the compensation claimed were also challenged by the insurer. In the additional written statement filed by the insurer before the Tribunal, it raised the plea that the driver did not have a valid driving licence. There was no plea as to the non-availability of the badge. It was pointed out in the additional written statement that the vehicle was found to have been involved in an abkari offence and that it has been driven by the second respondent. With all those materials, there was no dispute before the Tribunal as to the non-availability of the badge. Secondly and more importantly, the non-availability of MACAs 714&717/10 -6- the badge is not a condition on which the liability of the insurer could be excused, having regard to the law in that regard, which is pointedly stated in Kuruvila v. Jijo Joseph [2013(4) KLT 700]. In this case as well, there can be no finding that the absence of badge had in any way contributed to the cause of the accident. Breach cannot be said to be fundamental as well. Under such circumstances, these appeals are entitled to succeed. In the result, these appeals are allowed and the direction contained in the impugned award authorising the insurer to realise the award amount in both the claim petitions from respondent Nos.1 & 2 jointly and severally, after satisfying the amount awarded to the claimants, is hereby set aside. No costs. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) (BABU MATHEW P. JOSEPH, JUDGE) jg