IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 MACA.No. 320 of 2006(A) ----------------------- OPMV.821/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): 3RD RSPONDENT: ---------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, T.P. CELL, M.G. ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR SRI.RAJI T.BHASKER, CGSC. RESPONDENT(S): PETITIONERS 1 TO 4 & RESPONDENTS 1 AND 2 RESPECTIVELY --------------- 1. SMT. MANI @ MARI AMMAL, AGED ABOUT 43 YEARS, W/O. LATE GURUSWAMY PILLAI, METTUPALAYAM, TATTAMANGALAM POST, PALAKKAD-678 102. 2. GEETHA, AGED ABOUT 26 YEARS, D/O. LATE GURUSWAMY PILLAI, DO. 3. KAVITHA, AGED ABOUT 24 YEARS, D/O.LATE GURUSWAMY PILLAI, DO. 4. NAGARAJ, AGED ABOUT 19 YEARS, S/O. LATE GURUSWAMY PILLAI, DO. 5. M. PANDIAN, AGED ABOUT 43 YEARS, S/O. MARIAPPA DEVAR, NO.5, DHANDAPANIPURAM, 2ND STREET, PUDUKKOTTAI, TAMIL NADU. 6. VEERAMANI, AGED ABOUT 29 YEARS, S/O. THANGARASSU, 5/35 SOUTH STREET, PALLIKONDAN, MALIYAKKADU, PATTUKKOTTAI TALUK, THANJAVOOR DIST. ADV. SRI.U.BALAGANGADHARAN FOR R1TO4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 320 of 2006 ------------------------------------------------------ Dated: JUNE 23, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the 3rd respondent/Insurance Company in OP(MV) 821/1999 on the file of the Motor Accidents Claims Tribunal, Palakkad, challenges the judgment and award of the Tribunal, dated, April 29, 2005 awarding a compensation of Rs.2,32,950/- for the loss caused to the claimants on account of the death of one Guruswamy Pilla in a motor accident. 2. The facts leading to this appeal in brief are these: The deceased Guruswamy Pilla was aged 50 at the time of the accident and used to earn Rs.200/- per day as a painter. On June 24, 1999 at about 9.45 p.m. the deceased was cycling along the side of Chittur - Thathamangalam road near Chembankulam and when he reached near the Electricity Office, he was knocked down by a tempo van bearing registration No.TN 55B 4447 driven by the 2nd respondent. He sustained very serious injuries and he succumbed to the injuries sustained on the next day at about 2.30 a.m. while undergoing treatment at Fort Hospital, Palakkad. According to the claimants the accident occurred due to the negligence on the part of the 2nd respondent, driver of the tempo van. The 1st respondent as the M.A.C.A. 320 of 2006 2 owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending van are jointly and severally liable to pay compensation to the claimants, who are the wife and children of the deceased Guruswamy Pilla. The claimants claimed a compensation of Rs.3 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending van, remained absent and were set ex-parte by the Tribunal. The 3rd respondent, insurer of the offending van, filed a written statement admitting the policy and further contended that the 2nd respondent had no valid badge at the time of the accident. 4. PW.1 was examined and Exts.A1 to A8 were marked on the side of the claimants before the Tribunal. On the side of the contesting 3rd respondent Exts.B1 and B2 were marked. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.2,32,950/- with interest at 6% per annum from the date of petition till realisation and a cost of Rs.1000/-. The 3rd respondent has now come up in appeal contending that as the 2nd respondent had no valid badge at the time of the accident, the Insurance Company may be permitted to recover the compensation amount awarded from the owner and the driver of the vehicle. M.A.C.A. 320 of 2006 3 5. Heard the counsel for the Insurance Company and the counsel for the appellants/claimants. 6. The only question which arises for consideration is whether the appellant/Insurance Company can be permitted to recover the compensation amount awarded from the owner and the driver of the offending vehicle. 7. It has been held in National Insurance Co. Ltd. v. Swaran Singh {2004 (1) KLT 781 (SC)} that if the driver had no valid badge to drive a transport vehicle, it will amount to violation of condition of the policy, that in the case of breach of condition of the policy, the Insurance Company is liable to satisfy the award in favour of the 3rd party at the first instance and then it can recover the compensation amount awarded from the owner and the driver of the offending vehicle. In the present case though notice was effected by publication, the owner and the driver of the offending vehicle did not appear before this Court. Before the Tribunal also they were set ex parte. Therefore an adverse inference has to be drawn to the effect that the driver had no valid badge at the time of the accident to drive the offending vehicle. That being so, in the light of the principles laid down in the above decision, the appellant/Insurance Company is entitled to recover the compensation amount awarded from the owner M.A.C.A. 320 of 2006 4 and the driver of the offending vehicle, respondents 1 and 2 in the O.P. In the result the appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-