Dismissed

The Oriental Insurance Co.Ltd v. Beena

Kerala HC17 Nov 2021MACA/307/2012

Case brief

AI extract

What is this about?

The High Court of Kerala in MACA No. 307 of 2012 dismissed the insurer's appeal against the Motor Accident Claims Tribunal's award. The court held that reliance on invalid driver's badge is untenable given Supreme Court precedents excluding auto-rickshaws from the badge requirement.

What did the court decide?

The appeal was dismissed, and respondents were at liberty to execute the impugned award.

The Oriental Insurance Co.Ltd Vs Beena — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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WEDNESDAY, THE 17^TH DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943

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MACA NO. 307 OF 2012

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AGAINST THE ORDER/JUDGMENT IN OPMV 573/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM

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APPELLANT/S:

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THE ORIENTAL INSURANCE CO.LTD

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MANJERI,REPRESENTED BY THE AUTHORIZED SIGNATORY,THE ORIENTAL INSURANCE CO.LTD,REGIONAL OFFICE,METRO PALACE,ERNAKULAM NORTH,KOCHI-18.

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BY ADV SRI.A.R.GEORGE

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RESPONDENT/S:

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1 BEENA,W/O.LATE CHACKO,THAZHEMANGADE HOUSE,POOLACKAPOIYIL,PO PULLIPPADAM,PULLIPPADAM AMSOM,NILAMBUR TALUK,MALAPPURAM DISTRICT.676 542

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2 BINCY T MINOR,D/O.LATE CHACKO,-DO- -DO-

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3 BIJIN.T,(MINOR),LATE CHACKO,-DO- -DO-

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4 BIJISHA,(MINOR),D/O.LATE CHACKO,-DO- -DO-

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5 SAFEER,S/O.SAKARIYA HUSSAIN,KOYA NIVAS,PO CHANDAKKUNNU,NILAMBUR AMSOM,NILAMBUR TALUK.679 342

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6 KHADEEJA,D/O.MOHAMMED,KUNNATH VEEDU,RAILWAY DEPOT,PO NILAMBUR.R.S.,NILAMBUR AMSOM,NILAMBUR TALUK.(MINOR RESPONDENTS 2 TO 4 REPRESENTED BY THEIR MOTHER NILAMBUR TALUK. 679 329

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BY ADV SRI.P.SAMSUDIN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No.307 of 2012

C.S.DIAS, J.

======================

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MACA No.307 of 2012

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====================== Dated this the 17^th day of November, 2021.

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JUDGMENT

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The appellant/insurer was the third respondent in OP(MV) 573/2007 on the file of the Motor Accident Claims Tribunal, Manjeri. The respondents 1 to 4 in the appeal were the claimants and respondents 5 and 6

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were the respondents 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition.

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The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Chacko (deceased), the husband of the first petitioner and father of the petitioner 2 to 4. It was their case that, on 28.3.2006, while the deceased was walking along the Nilambur – Poolackapoiyil Road, an auto-rickshaw

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MACA No.307 of 2012

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bearing registration No.KL-10/Q 3547 (auto-rickshaw), driven by the first respondent in a rash and negligent manner, hit the deceased. The auto-rickshaw was

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owned by the second respondent and insured with the third respondent. The deceased was a rubber tapper by profession and earning a monthly income of Rs.3,500/-. Hence, the petitioners claimed a compensation of Rs.6,25,000/- from the respondents, which was limited to Rs.5,00,000/-.

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The respondents 1 and 2 did not contest the proceedings and were set ex parte.

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The third respondent/insurer had filed a written statement refuting the allegations in the claim petition. It was specifically contended that the first respondent did not hold a valid and effective driving licence and badge to drive the auto-rickshaw. The third respondent also contended that the actual insured was not made a party to the proceeding. Therefore, the

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MACA No.307 of 2012

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claim petition was bad for non-joinder of necessary parties, hence the claim petition be dismissed.

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The petitioners produced and marked Exts A1 to A3(b) in evidence. The third respondent produced and marked Exts B1 and B2 in evidence.

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The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to realise from the third respondent an amount of Rs.4,48,000/- with interest @ 9% per annum from the date of claim petition till the date of realisation.

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The Tribunal, despite entering a finding that the first respondent did not hold a valid badge to drive the auto-rickshaw, observed that the third respondent would be liberty to recover the compensation amount from the actual insured, who was not a party in the proceeding, by resorting to appropriate legal proceeding before the competent Forum.

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MACA No.307 of 2012

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Aggrieved by the above observation and the refusal of the Tribunal to grant recovery rights to the third respondent, the third respondent is in the appeal.

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Heard; Sri.A.R George, the learned counsel appearing for the appellant/third respondent-insurer and Sri.P.Samsudin, the learned counsel appearing for the respondents 1 to 4.

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The pivotal ground of challenge in the memorandum of appeal is that the Tribunal ought to have permitted the appellant to recover the compensation amount from the insured in the same proceedings, as laid down by the Hon'ble Supreme Court in Vineesh vs. New India Assurance Co Ltd [2010 KHC 6240] .

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The specific contention of the third respondent in the written statement is that since the first respondent did not hold a badge to drive the autorickshaw, on the date of the accident, therefore, there

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MACA No.307 of 2012

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was a violation of the insurance policy conditions.

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The above said ground is no longer tenable or relevant in view of the categoric declaration of law by the Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Ltd- [ (2017 (3) KLT 1000 (SC)], wherein, it is, inter alia, held that, if a transport vehicle's gross weight does not exceed 7500 kgms, the same would be treated as a light motor vehicle.

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Undisputedly, the gross weight of an auto rickshaw is less than 7500 kgms. Thus, there is no requirement, in the light of the law in Mukund Dewangan (supra), for a person to hold a badge to drive a transport vehicle having a gross weight below 7500 kgms. Consequentially, the contention of the appellant that the first respondent did not hold a badge has lost significance and has become untenable. As a corollary to the above declaration of law, the appellant

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MACA No.307 of 2012

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cannot contend that there was a violation of the insurance policy conditions, and aspire for recovery rights. In the above legal and factual matrix, I hold that the appeal is devoid of any merit and does not warrant to be admitted.

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In the result, the appeal is dismissed. The respondents 1 to 4 would be at full liberty to execute the impugned award, if the amount is not realised till date. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs.

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sd/-

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sks/17.11.2021 C.S.DIAS, JUDGE

The Oriental Insurance Co.Ltd v. Beena

Case brief

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The Oriental Insurance Co.Ltd v. Beena

Case brief

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