VARKEY v. LILLY GEORGE and ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944** **MACA NO. 364 OF 2012** **AGAINST THE AWARD DATED 12.06.2009 IN OPMV 1460/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/1ST RESPONDENT:** VARKEY,AGED 74 YEARS S/O.VARKEY, POVASSERRY HOUSE, EZHAKKAD POST, MUNDUR, PALAKKAD, (R.C.OWNER OF KL-09-E-8094 AUTORIKSHAW). BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENTS/PETITIONERS & 2ND RESPONDENT:** 1 LILLY GEORGE, AGED 47 YEARS W/O.LATE GEORGE, VENDANAM HOUSE, KADAMBOOR POST, OTTAPPALAM, PALAKKAD, PIN 679515. 2 SHIJI, AGED 25 YEARS S/O.LATE GEORGE, VENDANAM HOUSE, KADAMBOOR POST, OTTAPPALAM, PALAKKAD, PIN 679515. 3 SHIBY, AGED 20 YEARS S/O.LATE GEORGE, VENDANAM HOUSE, KADAMBOOR POST, OTTAPPALAM, PALAKKAD, PIN 679515. 4 THE NEW INDIA ASSURANCE CO.LTD. J.R.J.COMPLEX, OTTAPPALAM, PALAKKAD, PIN 679101, (INSURER OF THE KL-09-E-8094 AUTORIKSHAW), POLICY NO.3176110370600. BY ADVS. SRI.LAL K.JOSEPH SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.06.2022, THE COURT ON 15.06.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.364/2012 2 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A.No.364 of 2012_ ================================ _Dated this the 15[th] day of June, 2022_ ## _**J U D G M E N T**_ The 1st respondent in O.P(MV).No.1460/2005 on the file of the Motor Accidents Claims Tribunal, Ottappalam, is the appellant in this appeal filed under Section 173 of the Motor Vehicles Act. The respondents herein are original petitioners 1 to 3 and original respondents 2 and 3. 2. Heard the learned counsel for the appellant as well as the learned counsel for the insurance company. No representation for other respondents. 3. Short facts: One George died in consequence of an accident occurred on 21.01.2000 at about 9.30 p.m while he was driving an autorickshaw bearing Reg.No.KL 09 E 8094. Legal- M.A.C.A.No.364/2012 3 heirs filed claim petition under Section 163A of the Motor Vehicles Act claiming compensation to the tune of Rs.5 lakh. 4. The 1st respondent/the appellant herein filed written statement admitting the accident and ownership of the vehicle. He also conceded the monthly income of deceased at Rs.5,000/- and also asserted that the deceased was having a valid driving licence at the time of the accident. 5. The 2nd respondent insurer filed written statement disputing the accident and also highlighting the point that the policy issued in respect of the vehicle is only an act only policy. 6. The Tribunal ventured the matter. Exhibits A1 to A6 were marked on the side of the petitioner and Ext.B1 was marked on the side of the respondents. Ext.X1 also was marked. 7. After appraising the evidence, the Tribunal granted Rs.3,32,500/- to be paid by respondents 1 and 2 jointly and severally and it was ordered further that the 2nd respondent insurer M.A.C.A.No.364/2012 4 is liable to reimburse the entire award amount from the 1 st respondent on the finding that the deceased had no valid driving licence at the time of accident and there was violation of policy condition. 8. While assailing the said finding, the learned counsel for the 1st respondent relied on the decision reported in [2004 (1) KLT 781], _**National Insurance Co. Ltd. v. Swaran Singh. & Ors.**_ Para.102(iii) of the above judgment is given much emphasis in this regard. The same is extracted as under: _“102(iii): The breach of policy conditions, eg., disqualification of driver or invalid driving licence of the driver, as contained in sub section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured, for avoiding the liability of the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.”_ The learned counsel for the 1st respondent aruged further that to M.A.C.A.No.364/2012 5 avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. He argued further that in this case Ext.A6 driving licence in the name of the deceased George was produced before the court. However, as per Ext.X1 report given by the Regional Transport Officer, Guddallore dated 05.03.2009, the Tribunal found that driving licence bearing No.5168/94 produced before the Tribunal in the name of P.V.George is a fake one since as per Ext.X1 it was reported by the Regional Transport Officer that driving licence No. 5168/94 was issued to Thiru.S.Muthukumaran, S/o.Thiru. M.Subbarayan, 46 Adhi Street, Panruti by this office. According to the learned counsel for the appellant, since Ext.X1 is not properly proved by examining its author, the Tribunal went wrong in relying on Ext.X1. M.A.C.A.No.364/2012 6 9. In fact, the learned Tribunal found that P.V.George did not possess driving licence at the time of accident, relying on Ext.X1, and, therefore, the learned Tribunal ordered reimbursement of the award amount from the insured, by the insurer. 10. Repelling the ratio in _**Swaran Singh**_ 's case ( _supra_ ), the learned counsel for the insurance company placed another 3 Bench decision of the Apex Court reported in [2020 (5) KHC 289], _**Beli Ram v. Rajinder Kumar & anr.**_ to contend that adequate care by verifying the driving licence of the employee/driver has to be taken by the employer by checking up whether driver has renewed the licence and when the said responsibility is not fulfilled and the driving licence remains unrenewed, employer could be held as negligent. In the said case, no renewal of driving licence was considered and failure on the part of the owner to take the responsibility of check up licence was pointed out and accordingly the insurer was absolved from liability when claim under Section 4 M.A.C.A.No.364/2012 7 of the Workmen's Compensation Act, 1923 was considered. 11. In this case, the original petitioners themselves produced Ext.A6 driving licence alleged to be issued from Assistant Licensing Authority, Gudallore in the name of P.V.George. As per Ext.A6, driving licence No.5168/99 was issued in the name of P.V.George, S/o.Varkey, 78/147, Pillayar Koil Street, Guddalore on 13.05.1999. But Ext.X1 would reveal that the said number is pertaining to another man. It is pertinent to note that even after filing this appeal in the year 2012, the appellant not produced any document before this Court to substantiate that P.V.George obtained a valid driving licence at the time of accident apart from Ext.A6, which is found to be in the name of another man. 12. It is argued by the learned counsel for the appellant that Ext.X1 is not a public document and therefore without examining its author, the same cannot be given emphasis. 13. On perusal of Ext.X1, I cannot justify this contention. M.A.C.A.No.364/2012 8 Ext.X1 is a letter given by the Road Transporting Authority, Gudallore dated 05.03.2009 along with the relevant page of the licence issue register to the Motor Accidents Claims Tribunal, Ottappalam, Palakkad and thereby it was informed that driving licence shown in Ext.X1 is in relation to another person Thiru.S.Muthukumaran. Since Ext.X1 contains the letter as well as copy of the relevant page of the driving licence No.5168/99, the same can be accepted in evidence as the same is a public document. Therefore, the Tribunal could not be faulted in finding that there is no other evidence to show that P.V.George got a valid licence in any other number. 14. Coming to the ratio in _**Swaran Singh**_ 's case ( _supra_ ) wherein also when the violation of policy condition established, pay and recovery can be resorted to. 15. At this juncture, the learned counsel for the 1st respondent sought for a remand of this matter to facilitate the 1st M.A.C.A.No.364/2012 9 respondent to produce driving licence in the name of P.V.George. 16. Opposing remand, the learned counsel for the insurance company would submit that the policy itself is an `act only' policy and, therefore, even otherwise the risk of the rider of the autorickshaw is not covered. Anyhow, the said question was not raised before the Tribunal or any decision taken thereof. Ext.B1 would go to show that the same is an `act only' policy. 17. Considring the argument raised by the learned counsel for the 1st respondent appellant, I am inclined to remand this matter before the Tribunal for facilitating the 1st respondent to produce a driving licence along with its details furnished by the RTO, concerned, if any, in the name of P.V.George and also to consider the question of liability based on Ext.B1 policy. Since the Original Petition is of the year 2005, remand order shall be subject to payment of reasonable cost by the appellant since the appellant failed to adduce evidence before the Tribunal when he got M.A.C.A.No.364/2012 10 opportunity to do so. Therefore, the order of remand shall be subject to payment of Rs.15,000/- (Rupees Fifteen thousand only) by the appellant to the insurance company, to be deposited within a period of 7 days from the date of appearance of the parties before the Tribunal. Parties shall appear before the Tribunal on 11.07.2022. 18. In the result, the appeal stands allowed and for the purpose of remand, the right of recovery granted in this award stands set aside, subject to payment of cost ordered herein above. The Tribunal is directed to decide the above 2 questions, after remand; parties to adduce evidence within two months from the date of receipt of a copy of this judgment or its production by the concerned parties. 19. It is made clear that if the appellant fails to deposit Rs.15,000/- (Rupees Fifteen thousand only) as cost before the Tribunal on or before 18.07.2022, the order of remand shall stand M.A.C.A.No.364/2012 11 cancelled and the original award permitting right of recovery shall stand revived without any further orders and the Tribunal can close the Original Petition accordingly. Registry is directed to forward a copy of this judgment to the Motor Accidents Claims Tribunal, Ottappalam within a period of 7 days, so as to ensure appearance of the parties before the Tribunal on 11.07.2022 and subsequent steps. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_