AHAMMEDKUTTY HAJI Vs. AMINA

JUDGEMENT

(1.) The second respondent in O.P.(MV).No.571 of 1997 on the files of the Motor Accidents Claims Tribunal, Tirur is the appellant herein. This is his second round of litigation. The said claim petition filed under section 166 of the Motor Vehicles Act was originally disposed of by the Tribunal as per judgment and award dated 30.6.2003 granting a compensation of Rs.3,02,500.00 with interest @ 9% per annum from the date of the petition till realisation along with a cost of Rs.1,500.00. The 8th respondent-insurance company was directed to pay the amount awarded to the petitioners therein viz., respondents 1 to 6 herein and the insurance company was permitted to recover the amount so paid, from respondent No.7 and the appellant herein, who was the owner of the offending vehicle which is a lorry bearing Reg.No.KL 10-E-4831. Thereupon, the 8th respondent, insurance company, satisfied the award and then, filed E.P.53 of 2004 for recovering the amount paid from the appellant herein. It was in the circumstances that the appellant herein filed M.A.C.A. No.235 of 2004 before this Court on the earlier occasion. This Court disposed of the said appeal as per judgment dated 6.4.2011. Evidently, as per the said judgment, this Court remanded the matter solely for reconsideration on the question regarding 'who is liable to pay the compensation'. The said question was to be decided after affording opportunities to the appellant herein, the driver of the offending vehicle and the insurance company, going by the said judgment. At the same time, it was further observed in the judgment thus:-

(2.) Thus, it is evident that it was a closed remand confining the scope of consideration on remand as to who among the respondents before the Tribunal is liable to pay compensation. Pursuant to the remand, the Tribunal considered the aforesaid question in terms of the judgment of this Court in M.A.C.A. No.235 of 2004. Evidently, notice was also issued to the first respondent therein who was the driver of the vehicle involved in the accident. Like in the original proceedings, the first respondent therein remained ex parte and did not avail the opportunity granted by this Court to contest the matter on the aforesaid question despite the service of notice on him. Obviously, availing the opportunity granted by this Court, the appellant herein/the 3rd respondent therein, adduced evidence by getting himself examined as RW1. After considering the additional evidence and also the arguments advanced by both the owner of the vehicle (the appellant herein) and the insurer of the vehicle (8th respondent herein), the Tribunal passed the revised award impugned in this appeal. As per the same, the Tribunal held that the insurance company is entitled to recover the award amount, from respondents 1 and 2 after satisfying the award. It is feeling aggrieved by the said finding and the consequently granted right to recover the award amount that this appeal has been preferred by the insured-owner of the offending vehicle.

(3.) We have heard the learned counsel for the appellant and the learned counsel for the 8th respondent. As early as on 12.12.2001, taking note of the nature of the dispute and the existence of a valid insurance policy in respect of the offending vehicle, issuance of notice to the respondents except to the 8th respondent, was dispensed with. Essentially, the challenge in this appeal is against the liberty granted to the insurance company to recover the amount awarded, from the appellant who is the insured-owner of the offending vehicle after satisfying the award. Evidently, the 8th respondent effected payment of compensation to the claimants, in terms of the directions in the impugned judgment. The learned counsel for the appellant contended that since the vehicle in question was having a valid insurance policy at the time of the accident, the insurance company could not wriggle out of the statutory liability contending that the driver of the vehicle was not having a valid driving license at the time of the accident. To buttress the said contention the learned counsel relied on the decision of the Honourable Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh [2004 (1) KLT 781]. Placing reliance on the said decision, it is submitted by the learned counsel for the appellant that breach of conditions of a policy is a matter to be established by the insurance company and therefore, in this case, since the insurance company took up the contention that the appellant had violated the policy conditions by entrusting the vehicle to a person who was not having valid driving license, the liability is on the insurance company to establish the same. On the said foundation it is further contended by the appellant that having failed to establish the breach on his part, the insurance company could not avoid the statutory liability. Ergo, it is contended that the Tribunal erred in law in granting liberty to the insurance company to recover the amount awarded and that the Tribunal ought to have found that the insurance company is having statutory liability to indemnify the insured-owner/appellant. In other words, according to the appellant, the entire liability to pay compensation ought to have been fastened, ultimately, on the insurance company.