The New Indiaassurance Company Limited vs Tomy

B. Kemal Pasha, J.—Aggrieved by award dated 25.03.2013, the 3rd respondent insurer, who stands directed to pay the award amount without any privilege to recover the same from the registered owner in O.P.(MV) No. 1979/2009 of the Motor Accidents Claims Tribunal, Ernakulam, has come up in appeal.

It is a case wherein a pedestrian was knocked down by an autorickshaw, that was driven by the 2nd respondent. The appellant insurer contended that even though the 2nd respondent was holding a valid driving licence, the vehicle was not having any fitness certificate and further that the 2nd respondent was not holding a badge enabling him to drive a transport vehicle. Even though the said questions were raised before the Tribunal, the Tribunal has not accepted them and directed the appellant to pay the amount of compensation.

Heard the learned Senior Counsel Sri.Mathews Jacob for the appellant. The learned Senior Counsel has pointed out that identical matters in which want of fitness certificate and want of badge, etc. are there, have been referred to a Full Bench of this Court and any decision has not been pronounced so far, and therefore, this matter can also be dealt with only on the decision of the Full Bench. At the same time, it seems that there is no evidence in this case to show that the concerned vehicle was being used as a transport vehicle for hire or reward at the time of incident.

Admittedly, there is no evidence to show that the 2nd respondent was carrying passengers in the autorickshaw at the relevant time. The learned Senior Counsel has even though pointed out that the normal presumption is that when a transport vehicle was being driven, it was being driven as a transport vehicle for the purpose of carrying passengers, the said argument can be differentiated in some cases. Suppose a vehicle was being taken to the workshop or it was being taken back from the workshop after repairs, it cannot be said that the vehicle was being used for hire or reward. Only when there is some sort of evidence to show that the vehicle was being used for hire or reward, according to me, the presumption will come into play. In order to attract the presumption that the transport vehicles are being driven as a means of transport, some prima facie materials should be made out to show that the vehicle was being used as a transport vehicle at the time of accident. When no passengers were being carried in the autorickshaw at the time of the incident, according to me, there cannot be a presumption that it was being used for hire or reward at the time of incident.

Even though it is proved that the vehicle was not having any fitness certificate and also that the 2nd respondent was not holding a badge, in the absence of prima facie materials to show that the autorickshaw was being used for hire or reward at the time of incident, it cannot, in fact, constitute violation of policy conditions. In the decision in National Insurance Co. Ltd. Vs. Swaran Singh and Others, , it was held that in order to constitute a violation of policy condition, there should be a deliberate breach from the part of the insured. It was further held therein that unless and until it is proved by the insurer that the lack of fitness certificate, badge, etc. had contributed to the accident, it could not be said that there was deliberate breach of policy conditions. If as a matter of fact, a transport vehicle was being driven by a driver without any badge for carrying passengers and while so, it met with an accident, it could be said that the transport vehicle was entrusted with a person, who was not holding a badge for carrying passengers and, therefore, it has resulted in deliberate breach of the policy conditions. Similarly, if a vehicle, which does not have a fitness certificate, is used for carrying passengers, it could have been said that there was deliberate breach in making use of a vehicle which lacks fitness, as a transport vehicle which also is a deliberate breach. In this particular case, when there is no evidence to show that the vehicle was being used for hire or reward at the time of the accident or was used for carrying passengers at that time, it cannot be said that there was any deliberate breach of the policy conditions. Therefore, on a considered view, this Court is of the view that the impugned judgment does not call for any interference.

In the result, this appeal is dismissed. No order as to costs.