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2014 DIGILAW 500 (KER)

Anil K. Sreenivasan v. Omanakuttan Ulahakallumkal

2014-07-01

BABU MATHEW P.JOSEPH

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JUDGMENT : Babu Mathew P. Joseph, J. The first respondent had sustained injuries in a motor accident involving an auto rickshaw driven by the second respondent, owned by the appellant and insured with the third respondent. He had filed a petition before the Motor Accidents Claims Tribunal, Pala, claiming compensation on account of the injuries sustained in the accident. The learned Tribunal, after considering the matter, found that the second respondent was responsible for the accident and awarded a total compensation of 45,780/- (Rupees forty five thousand seven hundred and eighty only) under various heads. The third respondent admitted the insurance cover for the auto rickshaw involved in the accident. But, based on a contention raised by the third respondent, the Tribunal found that the second respondent was not holding an authorisation to drive a transport vehicle at the time of accident. Therefore, the amount found to be payable to the first respondent was directed to be paid by the third respondent and permitted them to recover the same from the appellant, who is the owner/insured of the vehicle, and the second respondent, the driver of the vehicle. Aggrieved by the permission so granted to the third respondent to recover the amount paid by them to the first respondent for the reason that the second respondent was not holding an authorisation to drive a transport vehicle, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. In the review petition filed by the appellant for reviewing the order passed by this court in C.M.A. No. 2843 of 2013 and for reviewing the judgment in this appeal, notices were served on the respondents 1 and 2. But, they remained absent. In the nature of the judgment being passed in this appeal, no notice need be served on the respondents 1 and 2. 3. The learned counsel for the appellant submits that the permission granted to the third respondent for recovering the amount paid to the first respondent, from the appellant and the second respondent is without any legal basis. The second respondent was holding a valid driving licence for driving the auto rickshaw at the time of accident. Absence of an authorisation for driving a transport vehicle is no ground for avoiding liability by the third respondent under the Insurance Policy. The second respondent was holding a valid driving licence for driving the auto rickshaw at the time of accident. Absence of an authorisation for driving a transport vehicle is no ground for avoiding liability by the third respondent under the Insurance Policy. Such a right is not available to them u/s 149 of the Motor Vehicles Act (for short, the Act), he further submits. 4. The second respondent was holding a valid driving licence for driving the auto rickshaw at the time of accident. But, he was not holding an authorisation/badge for driving a transport vehicle. There is no dispute with regard to the fact that the auto rickshaw involved in the accident is a transport vehicle. Therefore, the second respondent should have possessed an authorisation for driving that transport vehicle. Whether the absence of an authorisation for the driver at the time of accident can validly be raised by the Insurance Company for avoiding their liability under the admitted Insurance Policy, is the question to be answered. Section 149 of the Act authorises the Insurance Company to raise certain contentions for resisting claims made before the Motor Accidents Claims Tribunals. The contentions which can be so raised by the Insurance Company u/s 149 of the Act do not include a contention based on the absence of an authorisation/badge for the driver of a transport vehicle. In short, absence of an authorisation/badge is not a ground available to the Insurance Company for resisting a claim for compensation or for exonerating them from their liability under the Insurance Policy. 5. In the light of the ruling of this court in Kuruvilla Vs. Jijo Joseph, (2014) ACJ 1180 unless the Insurance Company is able to prove to the satisfaction of the court that, in fact, the absence of authorisation/badge has contributed to the cause of accident, they cannot avoid their liability to indemnify the insured/owner under the Insurance Policy. In the case on hand, no finding has been entered by the Tribunal that the absence of authorisation as contributed to the cause of accident. Moreover, the Insurance Company has not even made an attempt to prove that the absence of authorisation has contributed to the cause of accident. Therefore, the third respondent is liable to indemnify the appellant and hence to pay the compensation to the first respondent. Moreover, the Insurance Company has not even made an attempt to prove that the absence of authorisation has contributed to the cause of accident. Therefore, the third respondent is liable to indemnify the appellant and hence to pay the compensation to the first respondent. They cannot recover the amount so paid to the first respondent either from the appellant or from the second respondent. The permission granted by the Tribunal to the third respondent to recover the amount paid by them to the first respondent from the appellant is liable to be set aside. In the result, the permission granted by the Tribunal to the third respondent for recovering the amount from the appellant and the second respondent is set aside. It is declared that under the Insurance Policy issued by the third respondent in respect of the vehicle involved in the accident, they are liable to indemnify the appellant and hence to pay the compensation to the first respondent. The amounts deposited by the appellant on two occasions before the Tribunal shall be returned to him.