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The Branch Manager, New India Assurance Company Ltd. Changanassery Branch, Represented by Its Manager, Ernakulam v/s Mathew & Another

    MACA. No. 3007 of 2017

    Decided On, 01 July 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

    For the Appellant: Lal George, Advocate. For the Respondents: R. Bindu (Sasthamangalam), Cherian Gee Varghese, P. Haridas, Renji George Cherian, P.C. Shijin, Advocates.



Judgment Text

1. The 3rd respondent in O.P(MV) No.774 of 2011 on the file of the Motor Accidents Claims Tribunal, Mavelikkara is the appellant herein. Other respondents and the petitioners are the respondents in this appeal. The challenge in this appeal is refusal of pay and recovery right claimed by the insurer from the insured on the ground that the driver of the offending vehicle does not have badge at the time of the accident.

2. Brief facts of the case :

On 24.08.2009 at about 4.00 pm, while the deceased was pushing the bicycle by the side of the road, and when he reached at the spot of accident, the offending vehicle No. KL 3R 8284 driven by the 1st respondent in a rash and negligent manner hit the deceased and as a result he sustained serious injuries and he succumbed to his injuries. The case of the petitioners is that the accident happened solely due to the rash and negligent act of the 1st respondent driver, who is primarily liable and the 2nd respondent, who is the owner, is vicariously liable for the act of the 1st respondent. The 3rd respondent is the insurer, who is liable to indemnify the second respondent. The respondents are jointly and severally liable. The petitioners claimed total compensation of Rs.14,89,000/-.

3. As against the claim of Rs.14,89,000/-, the Tribunal granted a total compensation of Rs.4,72,500/-. It is submitted by the learned counsel for the insurance company that the driver of the vehicle, who is the 1st respondent, did not possess authorisation (badge) at the time of the accident and therefore there is violation in policy conditions. Therefore, the company is entitled to get recovery of the amount from the insured.

4. Ext.B1 is the copy of the policy produced from the side of the insurance company. On perusal of the same, the gross vehicle weight is shown as 16200 k.g. If the ratio of the ruling is applied to the facts of the case, no doubt, the driver of the trailer involved in the accident must possess the authorisation (badge) to drive the transport vehicle involved in the accident and absence of the same is a fundamental breach.

5. The learned counsel for the insured, though appeared before this Court, the insured failed to produce a valid badge during the period of accident and he did not produce the badge even after the Tribunal directed to produce the same as per order in I.A.No.1582 of 2016. Later the learned counsel for the insured placed argument note contending that the purpose of authorisation to drive a transport vehicle is conversant with the duties and responsibilities of a driver of the transport vehice and the same has nothing to do with the driving proficiency and infraction of the statutory requirement to have an authorisation as held in Paul v Chandran [2013 (4) KLT Suppl.110 (Ker.)]. Relying on the decision reported in National Insurance Company Ltd. v. Jisha.K.P and others reported in 2015(1) KHC 29 it is argued further that mere technical violation like absence of a badge by the driver of a transport vehicle is not sufficient to exonerate the insurance company from liability. The decision reported in National Insurance Co. Ltd. v. Swaran Singh [2004 KHC 314] also is highlighted to canvass the point that even where the insurer is able to prove breach on the part of the insured concerning the policy conditions regarding holding of a valid licence by the driver of qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breaches of the conditions of driving licence is so fundamental as are found to have contributed to the cause of the accident. The decision reported in New India Assurance Co. Ltd. v. Balakrishnan and Others [2011(4) KHC 203] is also highlighted in this regard. I have gone through a Full Bench decision cited by the learned counsel for the appellant/3rd respondent reported in Shaji v. Pradeesh [2018 (2) KLT 136 (F.B)] wherein National Insurance Co. Ltd. v. Jisha [2015 (1) KLT 1 (F.B)] and Mukund Dewangan v. Oriental Insurance Company Limited [AIR 2017 SC 3668] were discussed and finally held in para.7 as under:

"However, the Apex Court having evauated the entire law on the subject in Mukund Dewangan (supra) has held that light motor vehicle as defined in S.2(21) of the Act would include a transport vehicle as per weight prescribed in S.2(21) read with Sections 2(15) and 2(48). It was further held that a transport vehicle and omnibus, gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also a motor car or tractor or a road roller, `unladen weight' of which does not exceed 7500 k.g and holder of a driving licence to drive class of "light motor vehicle" as provided in S.10(2)(d) is competent to drive a transport vehicle or omnibus, gross vehicle weight of which does not exceed 7500 k.g. or a motor car or tractor or road roller, the "unladen weight" of which does not exceed 7500 k.g. Therefore, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class."

It is submitted by the learned counsel for the insured that even the ratio of Mukund Dewangan v. Oriental Insurance Company Limited (supra) is followed, there is no need of further endorsement to drive a light transport motor vehicle. However, it is conceded that vehicles having weight less than 7500 kg alone would come under the said category of vehicles. According to the insured, though a vehicle having weight more than 7500 kg. requires badge, no such contention was raised and no evidence was adduced in this regard. While addressing the argument advanced, going by the ratio of the ruling Mukund Dewangan v. Oriental Insurance Company Limited (supra), no separate endorsement on the licence (badge) is required to drive a transport vehicle of light motor category, if its weight does not exceed 7500 kg. That is to say, a badge is required to drive a transport vehicle having `unladen weight ' beyond 7500 kg. Therefore, I am inclined to modify the award for the purpose of granting recovery right to the insurance company.

6. In view of the matter, the contention raised by the learned counsel for the insured that no contention was raised and no evidence adduced to prove the weigh

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t of the vehicle could not sustain as it could be noticed that fundamental breach was pleaded in the written statement filed by the company and Ext.B1 policy showing the weight of the vehicle also was produced to prove the same. Thus it has to be held that the Tribunal went wrong in disallowing the prayer for recovery of the amount from the insured after depositing the same by the company. In the result, this Appeal is allowed, thereby it is ordered that the appellant insurance company is entited to recover Rs.4,72,500/- (Rupees Four lakhs seventy two thousand and five hundred only) with interest from the insured, after depositing the same before the Tribunal as directed by the Tribunal.
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