Allowed

Babychen K. Varghese v. Omanakuttan

Kerala HC3 Jan 2022MACA/248/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accidents Claims Tribunal award. Relying on Mukund Dewagan, the court held that no badge was required as the vehicle's gross weight did not exceed 7500Kg. The Tribunal's order allowing the insurer to recover compensation was set aside.

What did the court decide?

The direction permitting the insurer to recover compensation from the appellant is set aside; deposited amount refundable to the appellant.

Babychen K. Varghese Vs Omanakuttan — 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 MR.JUSTICE C.S.DIAS

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MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943

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MACA NO. 248 OF 2012

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AGAINST THE AWARD DATED 16.07.2011 IN OP(MV)NO.1198/2008 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

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APPELLANT/1ST RESPONDENT:

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BABYCHEN K. VARGHESE,
THOTTIYIL HOUSE, MALAM P.O.,
KOTOTAYAM.

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BY ADV SRI.MATHEW PHILIP EDAPPALLIL

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RESPONDENTS/ PETITIONER/ RESPONDENTS 2 AND 3:

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1 OMANAKUTTAN, KORATTIYIL HOUSE, MANARCADU VILLAGE, THIRUVANCHOOR P.O., KOTTAYAM-686037.

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2 JOMON, KANIYANKULAM HOUSE, PUTHUPALLY P.O., MADATHILPADY, KOTOTAYAM-686011.

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3 THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM-686001.

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BY ADVS. SRI.SURIN GEORGE IPE SRI.VPK.PANICKER

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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M.A.C.A.No.248/2012

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Dated this the 3^rd day of January,2022

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J U D G M E N T

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The appellant was the first respondent in O.P (MV) No.1198/2007 on the file of the Motor Accidents Claims Tribunal,Kottayam. The respondents in the appeal were the petitioner and respondents 2 and 3 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal.

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The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 14.05.2007. It was his case that, on the above date, while he was travelling as a passenger in an autorickshaw bearing registration No.KL-5-6885 through the Kavumpady-Thannickapadi road, a Mini lorry bearing registration No.KL-5-S-3821 (lorry), driven by the second respondent in a negligent manner, hit the autorickshaw. The appellant sustained

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M.A.C.A.No.248/2012

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serious injuries. The lorry was owned by the first respondent and insured with the third respondent. The appellant claimed a compensation of Rs.2,65,000/from the respondents, which was limited to Rs.2,50,000/-.

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The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte.

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The third respondent had filed a written statement contending that the second respondent did not hold a valid driving licence since he did not have a badge to drive the lorry. Therefore, there was violation of insurance policy conditions and the third respondent may be exonerated of its liability.

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The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover an amount of Rs.66,032/- from the third respondent with interest

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and cost. The third respondent was also permitted to recover the compensation amount from respondents 1

M.A.C.A.No.248/2012

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and 2.

Aggrieved by the direction in the impugned award, permitting the third respondent to recover the compensation amount from the respondents 1 and 2, the first respondent is in appeal.

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Heard; Sri. Mathew Philip Edappallil, the learned counsel appearing for the appellant/first respondent, Sri. Surin George Ipe, the learned counsel appearing for the second respondent and Sri. VPK.Panicker, the learned counsel appearing for the third respondent/insurer.

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The question that arises for consideration in this appeal is whether the direction in the impugned award permitting the third respondent to recover the compensation amount from the appellant is sustainable in law or not?

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The definite case of the third

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respondent-insurer was that the second respondent did not have a badge to drive the lorry. Even though

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M.A.C.A.No.248/2012

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the first respondent had produced and marked the copy of the permit and the registration certificate of the lorry as Exts.B2 and B3, the same was not considered by the Tribunal. As per the said documents, the unladen weight and gross weight of the lorry is 2400 Kg. and 5300 Kg., respectively.

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In Mukund Dewangan v. Oriental

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Insurance Company Limited [2017 (3) KLT 1000 (SC)] , the Hon’ble Supreme Court has held that, if the gross weight of a transport vehicle does not exceed 7500 Kg., the same has to be treated as a ‘light motor vehicle’.

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In the light of Exts.B2 and B3 certificates, it is proved that the gross weight of the lorry does not exceed 7500 Kg. Therefore, there is no requirement in

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law, as laid down in Mukund Dewangan (supra), for the second respondent to hold a badge to drive the lorry in question. Consequentially, it is to be held that the contention of the third respondent, that the first

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M.A.C.A.No.248/2012

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respondent had violated the insurance policy conditions, is untenable in law. As a corollary to the above declaration of law, the non-holding of the badge by the second respondent-driver of the lorry is irrelevant and immaterial. Hence, the direction in the impugned award, permitting the third respondent-insurer to recover the compensation amount from the appellant and the second respondent/respondents 1 and 2 before the Tribunal is unsustainable in law and is only to be set aside.

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In the result, the appeal is allowed. The direction in the impugned award in O.P.(MV)No.1198/2007 of the Motor Accidents Claims Tribunal,Kottayam, permitting the third respondent-insurer to recover the compensation amount from the appellant and the second respondent/ respondents 1 and 2 is set aside. It is made clear that, if the compensation amount has already been recovered from the appellant and deposited before the Tribunal, the appellant would be

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M.A.C.A.No.248/2012

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at liberty to move the Tribunal for recovery of the deposited amount in accordance with law. Needless to mention that, if the amount has already been disbursed to the third respondent-insurer, the Tribunal shall direct the third respondent-insurer to repay the amount to the appellant. In the light of the appeal being allowed, the amount deposited by the appellant as a pre-condition to file the appeal shall be refunded to him in accordance with law. In the facts and circumstances of the case, the parties shall bear their respective costs. All pending interlocutory applications will stand closed.

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Sd/-

C.S.DIAS,JUDGE

//True copy/

P.A.To Judge

DST/03.01.22

Babychen K. Varghese v. Omanakuttan

Case brief

What is this about?

What did the court decide?

Babychen K. Varghese v. Omanakuttan

Case brief

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What did the court decide?

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