The Oriental Insurance Co. Ltd. v. Selvan & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **MACA.No.811 OF 2014** **AGAINST THE AWARD IN OPMV 1010/2008 DATED 09-05-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/S:** **THE ORIENTAL INSURANCE CO.LTD METRO PALACE, GROUND FLOOR, OPP NORTH RAILWAY STATION, ERNAKULAM, REP BY ITS DULY AUTHORIZED OFFICER** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENT/S:** |**1**|**SELVAN**| |---|---| ||**S/O.ARUMUHAM CHETTIAR, T B ROAD,**| ||**VADAKKANCHERRY POST PALAKKAD-678510**| |**2**|**SHIBU M JOY**| ||**S/O.JOY, MUTHIRAKALAYIL VEEDU, MUGAPPARUTHA,**| ||**AMBITTANTHARISU,KORANCHIRA POST,**| ||**KIZHAKKENCHERRY, ALATHUR TALUK, PALAKKAD**| ||**DIST-678684**| |**3**|**UNITED INDIA INSURANCE CO LTD**| ||**PERSONAL LINE INSURRANCE OFFICE SURYA**| ||**COMPLEX,MISSION H S S JUNCTION, PALAKKAD-**| ||**678001**| |**4**|**RADHA**| ||**W/O.LATE KITTUCHAMI ALIAS KITTUCHAMI ALIAS**| ||**KITTY**| ## **MACA.No.811 OF 2014** ..2.. - **5 RIGMAMINOR** **D/O.KITTUCHAMI ALIAS KITTY, REP BY MOTHER AND NEXT FRIENT RADHA, W/O.LATE KITTUCHAMI ALIAS KITTY** - **6 RIJU** **S/O.LATE KITTUCHAMI ALIAS KITTY, (MINOR)REP BY MOTHER AND NEXT FRIEND RADHA, W/O.LATE KITTUCHAMI ALIAS KITTY** - **7 CHELLA** **W/O.LATE KANDAN, ALL R/A.KELAKKADU THANNIRPANTHAL,KINASSERY POST, PALAKKAD-678707** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKKAD R1, R4 BY ADV. SRI.BINOY VASUDEVAN R1 BY ADV. SRI.MILLU DANDAPANI** **R3 BY ADV. SRI.JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ..3.. ## **MACA.No.811 OF 2014** ## **JUDGMENT** ## **Dated this the 16th day of September 2020** The appellant is the 3[rd] respondent in OP(MV) No.1010 of 2008 on the file of the Motor Accidents Claims Tribunal, Palakkad. 2. The respondents 4 to 7 had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Kittuchami' @ Kittu, husband of the 4[th] respondent, father of respondents 5 and 6 and son of the 7[th] respondent, respectively. The parties are for the sake of convenience referred to as per their status in the appeal. 3. It was the case of the respondents 4 to 7 that, on 11.05.2008, a bus bearing Registration No.KL49/6500, owned by the 1[st] respondent and insured with the appellant, was driven by the 2[nd] respondent in a rash and negligent manner caused fatal injuries to the **MACA.No.811 OF 2014** **==> picture [18 x 9] intentionally omitted <==** deceased. Accordingly, the respondents 4 to 7 filed the claim petition claiming an amount of Rupees Five Lakh as compensation. 4. The appellant filed written statement and an additional written statement, inter alia, contending that the offending bus had deviated from the route mentioned in the permit, and that the accident occurred solely due to such deviation. The Police had chargesheeted the 2[nd] respondent under Sections 279, 304A of the Indian Penal Code and Section 66 read with Sections 192, 162 and 167 of the Motor Vehicles Act, 1988. 5. Neither party adduced any oral evidence. Exhibits A-1 to A-15 were produced and marked in evidence by respondents 4 to 7. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by directing the appellant and respondents 1 and 2 to jointly and severally pay the ## **MACA.No.811 OF 2014** **==> picture [17 x 8] intentionally omitted <==** respondents 4 to 7 an amount of Rs.3,45,500/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization. 7. It is aggrieved by the Award, directing the appellant to indemnify the 1st respondent/insured, this appeal is filed. 8. Heard Shri. V.P.K.Panicker, the learned counsel appearing for the appellant, Smt. Sumathi Dandapani, the learned Senior Counsel appearing for respondents 1 and 2 and Shri.Binoy Vasudevan, the learned Counsel appearing for respondents 4 to 7. 9. The sole question that emerges for consideration in this appeal is whether the direction in the impugned award that the appellant and respondents 1 and 2 are jointly and severally liable to pay the compensation amount is justifiable and sustainable in law. 10. The learned counsel appearing for the petitioner argued that going by Exhibit A-8 charge sheet, ## **MACA.No.811 OF 2014** ..6.. it is evident that the 2[nd] respondent driver drove the vehicle through a deviated route, which was not covered by Exhibit A-12 permit. Therefore, there is a breach of the conditions in Exhibit A-14 policy. Therefore, the Tribunal ought to have alteast permitted the appellant to pay and recover the compensation from respondents 1 and 2. He relied on the decision of this Court in **Thara v. Syamala** [2009(2) KLT 707], wherein it has been held that use of vehicle without fitness certificate or permit would entitle the insurer to dishonor liability under the policy. He prayed that the appeal be allowed and the appellant be exonerated from payment of compensation. 11. The learned Senior Counsel appearing for respondents 1 and 2 placed reliance on paragraph 17 of the decision of the Larger Bench (Five Judge Bench) of this Court in **Pareed Pillai v. Oriental Insurance Co. Ltd** [2018 (5) KHC 1], wherein it has been held as follows:- **MACA.No.811 OF 2014** ..7.. “17. The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of Section 66 of the Act and by virtue of the mandate under Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. **These requirements are quite 'fundamental' in nature; unlike a case where a transport vehicle carrying** ## **MACA.No.811 OF 2014** ..8.. **more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'.** In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.” [Emphasis supplied] **MACA.No.811 OF 2014** **==> picture [18 x 9] intentionally omitted <==** 12. In light of the above categoric declaration of law by the Larger Bench of this Court on the above question, even assuming that the offending vehicle had deviated from the route permitted by Exhibit A-12 permit, the said deviation can only be construed as a technical violation and not a fundamental breach of the conditions in Exhibit A-14 policy, warranting repudiation. Thus, the appellant cannot be exonerated of its liability or be permitted to pay and recover the compensation from respondents 1 and 2. Resultantly, the appeal fails and is consequently dismissed. Sd/- **C.S.DIAS** **JUDGE** kkj