High Court of KeralaSingle Judge2018-09-05Appeals by the Insurance Company dismissed; cos...

The New India Assurance Company Limited v N.A. Jose, S/O Antony; K.V. Sidhan, S/O Velayudhan; V. Rajendran, S/O Velayudhan

Case / Petition Number:MACA.No.1849 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-09-05
Court Decision / Holding: Appeals dismissed. The respondents are to pay costs of Rs. 6,000 within one month from receipt; if not paid, the insurer may recover the entire compensation from the registered owner.
Final Disposition: Appeals by the Insurance Company dismissed; costs of Rs. 6,000 to be paid by the owner within one month; failure to pay allows recovery of the amount from the owner.

Parties to the Case

Appellants / Petitioners

The New India Assurance Company Limited

Respondents

N.A. Jose, S/O Antony
K.V. Sidhan, S/O Velayudhan
V. Rajendran, S/O Velayudhan

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathews Jacob (Sr.)

Counsels for Respondents

• Sri P. Jacob Mathew
• Sri. M. Shaju Purushothaman
• Sri P. Samsudin

Case Synopsis & Summary

This is a consolidated Motor Accidents Claims Appeal from three MACAs (Nos. 1849, 1883, 2176 of 2011) arising from a 02.12.2001 road accident in which three persons riding a motorcycle collided with a Mahindra Van. The Motor Accidents Claims Tribunal had remanded the matter for re-examination of quantum and the driver’s licence/badge status on the insurer’s challenge that the driver lacked a valid licence and badge for a transport vehicle. The Tribunal initially held 20% contributory negligence by the motorbike and directed 80% of the compensation to be paid by the Insurance Company; claimants did not challenge quantum or the contributory negligence. The Insurance Company pressed its contentions that the driver did not possess a valid licence, and a transport vehicle required a badge. The court rejected the insurer’s burden on proving the negative and shifted the onus to the driver/owner to prove licence validity and badge compliance. On remand evidence, it was shown that the 2nd respondent had a valid LMV licence and a badge for a transport vehicle. Citing Mukund Dewangan v. Oriental Insurance Co. Ltd (SC), the court held that absence of a badge does not absolve liability if the licence is valid. The appeals were dismissed with costs, Rs. 6,000 payable by the vehicle’s owner, failure to pay permitting recovery of compensation by the insurer.

Legal Doctrines & Maxims

Burden of proof to prove licensing and badge lies on driver/owner (not insurer) as a condition precedent.
If a driver holds a valid licence for the vehicle category, mere absence of badge does not absolve liability (cited Mukund Dewangan v. Oriental Insurance Co. Ltd).
To be validly indemnified, the terms of the policy should be complied with.

Submissions & Arguments

Contentions of Appellants / Petitioners

The Insurance Company contended that the driver did not have a valid driving licence at the time of the accident and that, since the offending vehicle was a transport vehicle, a badge was required. It argued that the Tribunal should not have burdened the insurer with proving the absence of a badge; rather, the driver and owner must prove licence validity and badge compliance. The remand proceedings were meant to test the licence status and badge; insurer sought reconsideration of liability and quantum on those grounds.

Contentions of Respondents

The claimants argued that liability should be linked to whether the driver possessed a valid licence and that absence of a badge does not automatically absolve the insurer if the licence was valid, citing the principle later upheld by the Supreme Court in Mukund Dewangan. They urged that policy terms be complied with for indemnification and that the owner is liable if the driver was negligent.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mukund Dewangan v. Oriental Insurance Company Limited	2017 (3) KLT 1000 (SC)	Positive	Cited to support that presence of a valid licence for the vehicle category makes the absence of a badge non-decisive for liability.
MACA No. 1540 of 2008	MACA 1540 of 2008	Mentioned Only	Referenced for remand directions in related consolidated matters; not a binding proposition in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** ## **MACA.No. 1849 of 2011** **AGAINST THE AWARD IN OPMV NO.451/2002 OF THE MOTOR ACCIDENTS CLAIM TRIBUNAL, IRINJALAKUDA DATED 08-04-2011** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE COMPANY LIMITED NEYYATTINKARA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADV. SRI. MATHEWS JACOB (SR.)** ## **RESPONDENT/S:** |**1**|**N.A.JOSE, S/O.ANTONY**| |---|---| ||**NEELANKAVIL HOUSE, II 145, ARIMBOOR,**| ||**THRISSUR DISTRICT, PIN-680 520.**| |**2**|**K.V.SIDHAN, S/O.VELAYUDHAN**| ||**KUMMATHOLY HOUSE, MANALUR, THRISSUR DISTRICT,**| ||**PIN-680 518.**| |**3**|**V.RAJENDRAN, S/O.VELAYUDHAN**| ||**VELAYUDHAN MANIDRAM, PONGUMOODU,**| ||**KOOVALASSERY P.O., NEYYATTINKARA,**| ||**PIN-695 009.**| ||**BY ADVS.SRI.P.JACOB MATHEW**| ||**SRI. M. SHAJU PURUSHOTHAMAN**| ||**SRI.P.SAMSUDIN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, ALONG WITH M.A.C.A. NOS.1883 OF 2011 & 2176 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1849, 1883 & 2176 of 2011 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** **MACA.No. 1883 of 2011** **AGAINST THE AWARD IN OPMV NO.338/2002 OF THE MOTOR ACCIDENTS CLAIM TRIBUNAL, IRINJALAKUDA DATED 08-04-2011** ## **APPELLANT/S:** |||**THE NEW INDIA ASSURANCE COMPANY LIMITED**| |---|---|---| |||**NEYYATTINKARA, NOW REPRESENTED BY ITS**| |||**MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.**| |||**BY ADV. SRI. MATHEWS JACOB (SR.)**| |**RESPONDENT/S**<br>**:**||| |**1**||**N.A.JOSE, S/O.ANTONY**| |||**NEELANKAVIL HOUSE, II 145, ARIMBOOR,**| |||**THRISSUR DISTRICT, PIN-680 520.**| |**2**||**K.V.SIDHAN, S/O.VELAYUDHAN**| |||**KUMMATHOLY HOUSE, MANALUR, THRISSUR DISTRICT,**| |||**PIN-680 518.**| |**3**||**V.RAJENDRAN, S/O.VELAYUDHAN**| |||**VELAYUDHAN MANIDRAM, PONGUMOODU,**| |||**KOOVALASSERY P.O., NEYYATTINKARA,**| |||**PIN-695 009.**| |||**BY ADVS.SRI.P.JACOB MATHEW**| |||**SRI. M. SHAJU PURUSHOTHAMAN**| |||**SRI.P.SAMSUDIN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, ALONG WITH M.A.C.A. NOS.1849 OF 2011 & 2176 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1849, 1883 & 2176 of 2011 3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** **MACA.No. 2176 of 2011** **AGAINST THE AWARD IN OPMV NO.251/2002 OF THE MOTOR ACCIDENTS CLAIM TRIBUNAL, IRINJALAKUDA DATED 08-04-2011** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE COMPANY LIMITED NEYYATTINKARA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADV. SRI. MATHEWS JACOB (SR.)** ## **RESPONDENT/S:** |**1**|**N.A.JOSE, S/O.ANTONY**| |---|---| ||**NEELANKAVIL HOUSE, II 145, ARIMBOOR,**| ||**THRISSUR DISTRICT, PIN-680 520.**| |**2**|**K.V.SIDHAN, S/O.VELAYUDHAN**| ||**KUMMATHOLY HOUSE, MANALUR, THRISSUR DISTRICT,**| ||**PIN-680 518.**| |**3**|**V.RAJENDRAN, S/O.VELAYUDHAN**| ||**VELAYUDHAN MANIDRAM, PONGUMOODU,**| ||**KOOVALASSERY P.O., NEYYATTINKARA,**| ||**PIN-695 009.**| ||**BY ADVS.SRI.P.JACOB MATHEW**| ||**SRI. M. SHAJU PURUSHOTHAMAN**| ||**SRI.P.SAMSUDIN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, ALONG WITH M.A.C.A. NOS.1883 OF 2011 & 1849 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1849, 1883 & 2176 of 2011 4** ## **JUDGMENT** **The Insurance Company is in appeal from a common order of the Motor Accident Claims Tribunal. The accident, which led to the filing of three claim petitions occurred on 02.12.2001. Three persons riding in a motor bike collided with a Mahindra Van driven by the 2[nd] respondent and owned by the 1[st] respondent. The 3[rd] respondent is the subsequent owner of the vehicle after the accident. Once there was an appeal to this Court by the claimants as also the Insurance Company, in which there was a remand made as per the judgment in MACA No.1540 of 2008 and connected cases. Therein the Insurance Company had raised a contention that the driver did not have a valid licence at the time of the accident and since the offending vehicle was a transport vehicle, he also ought to have had a badge. The Tribunal was directed to reconsider the aspect of quantum of compensation as also the question of validity of** **MACA.Nos.1849, 1883 & 2176 of 2011 5** **licence produced before this Court.** **2. On reconsideration the impugned award was passed by the Tribunal. In that, 20% contributory negligence was found on the motor bike, since it carried three persons, including the driver of the motor cycle, who succumbed to his injuries in the accident. 80% of the compensation awarded was directed to be paid by the Insurance Company. There is no appeal by the claimants on the quantum awarded or the contributory negligence found. The appeals are by the Insurance Company, again asserting that the driver, the 2[nd] respondent, did not have a valid licence or a badge to drive a transport vehicle.** **3. The Tribunal found that on production of the driving licence, it was the duty of the Insurance Company to prove that the driver driver did not have a badge. This Court cannot agree with such finding by the Tribunal, especially since the Insurance Company cannot be called upon to prove the negative, when they assert that the driver** **MACA.Nos.1849, 1883 & 2176 of 2011 6** **does not have a licence and badge; it is the duty of the driver or the owner of the vehicle to prove that the driver had a valid licence and also a badge. The claim filed is seeking compensation for the injury caused in the accident by the vehicle. The accident if found to be caused due to the negligence of the driver, then the registered owner is liable, who is indemnified by the insurer. To be validly indemnified the terms of the policy should have been complied with and it is for the driver and the owner to prove that the conditions of the policy were complied with, one of which is of the driver having a valid licence. The burden is squarely on the party respondents to prove that they have a badge if that too is a condition of the policy issued.** **4. Be that as it may, a copy of the driving licence particulars issued by the RTO Office, Thrissur has now been produced along with I.A. No.1 of 2018 in M.A.C.A. No.2176 of 2011. This indicates that the 2[nd] respondent had a valid** **MACA.Nos.1849, 1883 & 2176 of 2011 7** **licence at the time of accident on 02.12.2001 and also had a badge to drive a transport vehicle. In this context, one has also to notice that now the Hon'ble Supreme Court has held in** _**Mukund Dewangan v. Oriental Insurance Company Limited [2017 (3) KLT 1000 (SC)]**_ **that if the driver of the vehicle has a valid licence of that particular category of vehicle, the mere absence of the badge shall not absolve the liability of the Insurance Company. In the present case, the driver is found to have held a badge also at the time of accident.** **5. The entire contention raised by the Insurance Company was for reason of there being a suspension of driving licence for a period of three months and there was no specification in Ext.A25, the driving licence produced by the driver, as to whether there was a valid licence at the time of the accident. As of now, it is seen from the driving licence particulars that there was a valid licence held by the 2[nd] respondent at the time of accident for driving a light motor** **MACA.Nos.1849, 1883 & 2176 of 2011 8** **vehicle [LMV] and he also had a valid badge for driving a transport vehicle. In this context, it is to be noticed that the driver and the owner at the earlier point itself had raised a contention in the MACA filed by the Insurance Company that they had a valid licence. The driver was directed to produce the same before the Tribunal on remand and lead evidence to show that the licence was valid at the time of accident. However, on remand neither driver nor the owner appeared before the Tribunal. In fact, the driver was also directed to pay cost of Rs.6,000/- to the claimants, which also was not paid.** **In such circumstances, it is to be found that the driver and the owner were negligent in so far as not appearing before the Tribunal and leading evidence before it. In any event, now that it has been proved that there is a valid driving licence held by the 2[nd] respondent along with a badge to drive a transport vehicle, the appeals of the Insurance Company cannot be entertained. The** **MACA.Nos.1849, 1883 & 2176 of 2011 9** **appeals would stand rejected however on condition of the respondents bearing the costs of the appeal since it was necessitated only because the party respondents did not comply with the directions in the order of remand. The cost is fixed at Rs. 6,000/- which shall be paid by the owner of the vehicle, within a month from the date of receipt failing which the insurance company would be entitled to recover the entire compensation amounts from the registered owner.** **Sd/-** ## **K.VINOD CHANDRAN Judge** **//True Copy//** **P.A. To Judge** sp/06/09/18