Allowed

C.O.Simon v. Mathew and Others

Kerala HC4 Nov 2022MACA/1235/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed the appeal against an award by the Motor Accidents Claims Tribunal. Relying on a Bell 위험 precedent regarding unladen weight, the Court held the Tribunal erred in finding the driver lacked an endorsement for the light vehicle. Consequently, the decision allowing recovery from the insured was set aside.

What did the court decide?

The appeal is allowed. The MACT's finding regarding lack of endorsement and subsequent recovery from the insured is set aside.

C.O.Simon Vs Mathew and Others — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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FRIDAY, THE 4TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944

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MACA NO. 1235 OF 2009

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AGAINST THE JUDGMENT IN O.P(MV) NO.858/2000 OF MOTOR ACCIDENT

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CLAIMS TRIBUNAL, THRISSUR

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APPELLANT/RESPONDENT :-

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C.O.SIMON
S/O OUSEPH, CHITTATTUKARA (H)
PERAMANGALAM, THRISSUR DIST.

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BY ADV SRI.T.A.RAJAGOPALAN

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RESPONDENTS/PETITIONER NO.1 :-

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1MATHEW, S/O MATHUNNI
KOLAPRAN HOUSE, P.O. PERAMBRA, KODAKARA VILLAGE,
CHALAKUDY,, THRISSUR DISTRICT.
2MINOSH 20 YEARS, S,O. DEVASSY
CHITTATTUKARA HOUSE, AVANAVU ROAD,, PERAMANGALAM,
THRISSUR, DISTRICT.
3THE ORIENTAL INSURANCE
CO. LTD., BRANCH, KUNNAMKULAM.
BY ADVS.
SRI.GEORGE CHERIAN THIRUVALLA
SRI.C.PRABIN BENNY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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MACA No.1235 of 2009

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JUDGMENT

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Dated this the 04^th day of November, 2022

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This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’) in O.P.(MV) No.858 of 2000. The impugned award was passed by the Tribunal on 22.08.2003 and the first respondent, insured has raised a challenge against it. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the above Original Petition.

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The Tribunal has arrived at Rs.51,550/- as compensation in favour of the petitioner and directed the third respondent to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation together with Rs.500/- as costs. The third respondent was also permitted by the impugned award to recover the said amount with interest from the first respondent after the same is deposited. Being aggrieved by the above

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MACA No.1235 of 2009

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award, the first respondent has approached this Court in the appeal on hand.

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The contention of Shri.T.A.Rajagopalan, the

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learned counsel for the appellant was that the driver of the offending vehicle was holding a valid badge at the relevant time of accident but the Tribunal found against and held that the driver of the offending vehicle was not holding a badge to drive it at the relevant time of accident and by permitting him to drive the vehicle without authorisation, the owner has violated

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the conditions of the policy and therefore, entitled to get recovery of the compensation from him. The learned counsel has relied on Mukund Dewangan v. Oriental Insurance Company Limited [2017 (4) KHC 648], to contend that a driver who is having a licence to drive a light motor vehicle if drives a transport vehicle of that class, is not required to have an endorsement to drive a transport vehicle.

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The Final Report laid in the crime registered based on the accident in question was marked in evidence as Ext.A5. As per Ext.A5, a petty case was registered against the driver

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MACA No.1235 of 2009

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of the offending vehicle for driving the autorickshaw without a badge. On the basis of Ext.A5, the Tribunal found that the driver was not holding the necessary endorsement to drive a transport vehicle.

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According to the learned counsel for the third respondent, if the vehicle is having an unladen weight below 7500 kg, a badge is unnecessary to drive it as per the dictum in Mukund Dewangan supra. The said dictum now stands referred to a Larger Bench and the reference is yet to be answered. Therefore, the proposition of law laid in Mukund Dewangan supra will hold the field till the reference is answered and this Court is inclined to take a view that an endorsement is not necessary for the driver in the case on hand to drive the offending vehicle, which is having only an approximate unladen weight of 270 Kg.

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In the above circumstances, the finding that the driver of the offending vehicle was not holding a valid badge authorising him to drive it being erroneously arrived at by the Tribunal in the case on hand is only liable to be set aside. The

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MACA No.1235 of 2009

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5

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finding that the third respondent is entitled to recover the compensation amount after depositing it in favour of the petitioner was also erroneously entered into by the Tribunal and it also needs to be set aside and this Court do so.

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It is submitted by the leaned counsel for the appellant that, the third respondent has already recovered the amount from him. Therefore, the appellant shall take necessary steps to get the amount already recovered from him by the third respondent, returned in his favour. In case the appellant files an application seeking return of the money, the Tribunal shall direct the third respondent to redeposit it, so that it could be disbursed in his favour.

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M.A.C.A. stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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SMA

C.O.Simon v. Mathew and Others

Case brief

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C.O.Simon v. Mathew and Others

Case brief

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