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2025 DIGILAW 720 (KER)

Sathi Kumar S/o. Krishna Pillai v. Sathi Devi

2025-03-24

C.PRATHEEP KUMAR

body2025
JUDGMENT : C.PRATHEEP KUMAR, J. The additional respondent No.3 in O.P.(M.V.) No.187/2006 on the file of the Motor Accident Claims Tribunal, Neyyattinkara is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The O.P. was filed under under Section 166 of the Motor Vehicles Act, 1988, by the legal representatives of the deceased by name Sadasivan Nair, who died in a motor vehicle accident that occurred on 14.10.2005. According to them, on 14.10.2005, at about 3.45 p.m. while the deceased was riding a scooter, an autorickshaw bearing registration No.KL-01Q-3949, driven by the 3 rd respondent in a rash and negligent manner hit him down and as a result of which he fell down and sustained serious injuries and succumbed to the injuries on the same day. 3. The 1 st respondent is the owner, the 2 nd respondent is the insurer and 3 rd respondent is the driver of the offending vehicle. According to the petitioners, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. was Rs.15,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of RW1 and documentary evidence Exts.A1 to A15, B1 and B2. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.11,09,284/- rounded to Rs.11,10,000/-, directed the 2 nd respondent/insurer to pay the same and thereafter permitted the 2 nd respondent to recover the same from respondents 1 and 3 for the reason that the 3 rd respondent took the autorickshaw to Thiruvananthapuram city limit, in which it was prohibited from entering, as per the terms of Exhibit B2 permit. 7. Aggrieved by the above awarded, to the extent it permitted the 2 nd respondent from recovering the compensation from the respondents 1 and 3, the 3 rd respondent preferred this appeal. 8. Now the point that arises for consideration is the following: Whether the conduct of the 3 rd respondent in taking the auto rickshaw into Thiruvananthapuram city limit amounts to violation of policy condition? 9. 8. Now the point that arises for consideration is the following: Whether the conduct of the 3 rd respondent in taking the auto rickshaw into Thiruvananthapuram city limit amounts to violation of policy condition? 9. Heard Sri Abhilash T, the learned Counsel on behalf of Sri. P. Parameswaran Nair, the learned counsel for the appellant and Sri.John Joseph Vettikkad, the learned Standing Counsel for the 2 nd respondent/insurer. 10. The learned counsel for the appellant relying upon the decision of a Karnataka High Court in Maliyamma v. H. Kumarswamy and Others in MFA.No.101944 of 2015 would argue that in a similar instance, the Karnataka High Court held that plying autorickshaw through route which is not permitted in the permit does not amount to violation of policy condition. In the said judgment, the learned judge held in paragraph 6, as follows: “6. The issue involved is no more res-integra in view of the decision of this Court (Bengaluru Bench) in MFA No.2526/2018 connected with another case, between The Manager, Oriental Insurance Company Ltd., vs. Melappa S/o.Hatti Thimmappa, decided on 22.07.2022. The defence available to the insurance company as per sub-section (2) of section 149 of M.V.Act is that when the vehicle is used for other than the purpose not allowed by permit, then the insurance company is absolved. Here for what purpose the permit is given to auto rickshaw, for the same purpose the auto rickshaw is used. The only deviation is, the auto rickshaw has plied other than the route permitted, but this is not deviation of purpose; it is only a deviation of route. Hence, for what purpose a permit is given to auto rickshaw is for carrying passengers; for the same purpose the auto rickshaw is used for carrying passengers. Therefore only deviation of route is occurred, but not deviation of purpose. Therefore the insurance company cannot be absolved on this ground.” 11. In Managing Director v. George, MANU/KE/3608/2021 [MACA No.4076/2017 decided on 23.11.2021] , a learned Single Judge of this Court held that in a case where a transport vehicle was plying through a deviated route, than the one shown in the route permit, does not amount to fundamental breach of policy condition and it is only a technical violation. The learned Single Judge further held that in such condition, the insurer cannot claim exoneration from the liability to reimburse the insured. The learned Single Judge further held that in such condition, the insurer cannot claim exoneration from the liability to reimburse the insured. In the light of the above decisions, it can be seen that the conduct of the 3 rd respondent in plying the auto rickshaw to the limits of Thiruvananthapuram city limit does not amount to violation of policy condition. The vehicle was used only for the purpose for which permit was given, namely for carrying passengers. The violation, if any, is only a technical one and not a fundamental breach of policy condition and as such the Tribunal was not justified in permitting the 2 nd respondent to recover the compensation from respondents 1 and 3. In the result, this appeal is allowed. The impugned Award, to the extent it permitted the 2 nd respondent to recover the compensation from respondents 1 and 3 is set aside.