Zackaria vs Sheena Sangeeth

T.R. Ravi, J.

On 30.10.2006, the bike in which the 1st respondent was travelling as a pillion rider was hit by an autorikshaw belonging to the appellant and driven by the husband of the 4th respondent in a rash and negligent manner. The 1st respondent suffered serious injuries. She was taken to Royal Hospital, Kunnamkulam, where she had undergone open reduction and internal fixation. Bone grafting operation was also done and she was undergoing treatment at the time when the claim petition was filed. The Tribunal awarded a sum of Rs.96,660/- as compensation. Finding that there was breach of policy conditions, the Tribunal permitted the 5th respondent insurer to pay the compensation to the 1st respondent and recover the same from the appellant. Aggrieved by the permission granted to the insurer to recover the amount, the appellant has filed this appeal.

Heard the counsel for the appellant and the respondents.

The main contention raised by the counsel for the appellant is that the husband of the 4th respondent Sri Rajan, who was the driver of the offending vehicle, had died much before the award was passed and hence the award is a nullity. It was pointed out that the fact that the 4th respondent's husband had died was brought to the notice of the Tribunal on 20.5.2016 by means of a memo, but the Tribunal proceeded to pass the award on 31.5.2016, finding that the deceased did not possess a valid license and hence there was violation of the policy conditions. The award shows that the deceased had been set ex parte. It is seen from the proceedings sheet that the Tribunal had noted that the 4th respondent's husband was no more but posted the case for hearing on 23.5.2016, even without ordering any steps to implead the legal representatives. It is thereafter that the award was passed on 31.5.2016. The counsel's contention hence is that the appeal has to be allowed and the award set aside and the matter remanded for reconsideration after notice to the legal representatives of the deceased who have been impleaded in this appeal as respondents 2 to 4.

The counsel for the 1st respondent submits that this is not a case in which a remand is called for. The contention is that the driver has no role in the claim petition preferred and it is either the Insurance Company or the owner of the vehicle who can be made liable. As such the absence of the driver before the Tribunal cannot be a reason for setting aside the award. The counsel contends that the procedure contemplated before the Tribunal is summary in nature and are governed by the Rules made under the Motor Vehicles Act. It is pointed out that Rule 395 of the Kerala Motor Vehicles Rules (hereinafter referred to as the Rules), which provides for application of provisions of the Code of Civil Procedure does not refer to the applicability of Order 22 of the Code. Referring to Rule 392 it is submitted that the Rule only contemplates passing of an award against the insurer or the owner and not against the driver. It is hence contended that the driver has no role. The above argument is buttressed by reference to Rule 378 (5), which says that the Tribunal shall obtain information from the Police, medical and other authorities and proceed to settle the claim, whether or not the persons to whom notice was sent appeared. It is submitted that it is not a case where any right to sue survives in favour of the driver. The counsel referred to the decision in Oriental Insurance Co.Ltd v. Shobhana Omanakuttan and others reported in [2015 KHC 406], wherein a Division Bench of this Court after referring to Rules 377 and 378 of the Rules, held that it cannot be said that the driver of the offending vehicle was a necessary party. It was further held that in order to hold that the owner of the vehicle is vicariously liable, a finding needs to be rendered about the negligence of his servant but it is not imperative that the driver is impleaded as a party. The Court held that the driver and the owner are joint tortfeasors and an action can be initiated against any one of the tortfeasors. Reference is also made to the provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1977 to contend that a suit against one of the joint tortfeasors is maintainable.

In reply, the counsel for the appellant submitted that the liability of the owner is vicarious in nature and is dependent on the liability of the driver owing to his negligence. It is hence submitted that in such cases, the right to sue survives and hence the legal representatives of the deceased ought to have been impleaded.

Having considered the contentions put forward by the counsel for the appellant and the respondents, I am of the opinion that the death of the driver does not result in an abatement of the entire proceedings. So also, an award passed without bringing on record the legal representatives of the deceased driver cannot be said to be a nullity. The liability of the owner of the vehicle, true, is vicarious. Once the negligence of the driver is found, the owner also becomes liable vicariously. By means of insurance policy, the liability of the owner to pay the compensation is taken over by the Insurance Company. To that extent it can be said that it is not necessary to even implead the driver, who is a joint tortfeasor. However, when it comes to the question of the entitlement of the insurer to proceed against the owner for recovery of the amount of compensation paid to the claimant, necessarily, it is dependent on the contract between the insurer and the insured. When the said contract provides that the insurer is not liable if there is a violation of policy conditions, it becomes necessary for the Tribunal to go into the question whether there is such a violation. In order to decide whether there is such a violation, the driver is a necessary party since the violation pointed out is directly relatable to the absence of a license with the driver of the vehicle. Thus, even though the award insofar as it fixed the compensation and the liability of the insurer to pay will not be a nullity, the award will definitely be a nullity insofar as it finds that the insurer is entitled to recover the amount from the owner of the vehicle, for the reason that the driver did not possess a license, particularly since such a finding was rendered in the absence of the driver. The judgment in Shobhana (supra) does not consider the above issue but only deals with the question whether all the joint tortfeasors are necessarily to be made parties to the proceedings.

In the above circumstances, the appeal is allowed in part. The award of the Tribunal insofar as it permits the insurer to recover the amount of compensation from the appellant is set aside. In all other respects the award is confirmed. The case is remanded to the Tribunal for the purpose of considering the question whether the Insurance Company has to be permitted to recover the amount of compensation from the appellant, which shall be done after impleading the legal representatives of the deceased driver and allowing them an opportunity to place on record any evidence available to show that there is no violation of policy conditions. The Insurance Company shall be permitted to take steps to bring on record the legal representatives of the driver, who are respondents 2 to 5 in this appeal. All the parties will be permitted to adduce additional evidence regarding the issue of right of recovery aforesaid. The parties will appear before the Tribunal on 20.1.2022. The Tribunal shall make all endeavour to finalise the proceedings within 4 months from 20.1.2022. It is not obligatory on the part of the 1st respondent to participate in the proceedings after remand.