Kamarudheen Thayyil S/O Hanifa v. Thottassery Sulaiman and ICICI Lombard General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939 MACA.No. 1410 of 2012 AGAINST THE AWARD IN OPMV 753/2010 of M.A.C.T. TIRUR DATED 25-10-2011 ------------------------- ## APPELLANT/1ST RESPONDENT KAMARUDHEEN THAYYIL S/O. HANEEFA,THAYYIL HOUSE, OORAKAM.P.O., PIN-676515, KEEZHUMURI, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV.SRI.JAMSHEED HAFIZ ## RESPONDENTS/CLAIMANT/2ND RESPONDENT: ## 1. THOTTASSERY SULAIMAN S/O. MOHAMMEDKUTTY HAJI, THOTTASSERI HOUSE, OORAKAM.P.O., PIN-676515, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. I.C.I.C.I. LOMABARD GENERAL INSURANCE CO. LTD. UMK TOWER, JUBILEE ROAD, UP HILL, MALAPURAM (PO) PIN-676505, MALAPPURAM DISTRICT. R2 BY ADV. SRI.K.B.RAMANAND R2 BY ADV. SRI.R.AJITH KUMAR (128/84) R1 BY ADV. SRI.P.VENUGOPAL (1086/92) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2018, THE COURT ON 15.02.2018 DELIVERED THE FOLLOWING: ## **R.NARAYANA PISHARADI, JJ.** ******************************** M.A.C.A.No.1410 of 2012 ------------------------------------------------------------Dated this the 15[th] day of February, 2018 ## **JUDGMENT** This appeal is directed against the judgment and award dated 25.10.2011 passed in O.P(M.V) No.753/2010 on the file of the Motor Accidents Claims Tribunal, Tirur. 2. The appellant is the first respondent in O.P(M.V) No.753/2010 filed before the Tribunal. He is the owner of the motorcycle bearing registration number KL-55/ E 1187. While the appellant was riding the aforesaid motorcycle, it hit against the motorcycle which was driven by the claimant. The Tribunal found that the accident occurred due to the negligence of the appellant in driving the motor cycle. The Tribunal awarded a total amount of Rs.1,89,000/- as compensation to the claimant. The appellant had only a learner's driving licence at the time of the accident. The Tribunal found that the appellant failed to prove that he had a valid and effective driving licence. The Tribunal directed the second respondent insurance company to pay the amount of M.A.C.A.No.1410/2012 2 compensation to the claimant but permitted it to recover the amount from the appellant. 3. According to the case of the claimant, on 05.11.2009 at about 22.45 hours, he was riding the motorcycle bearing registration number KL-10/X 902 through the public road at the place Kuttaloor. Then, the motorcycle bearing registration number KL-55/ E 1187 driven by the appellant came from the opposite direction and hit on his motorcycle. The claimant sustained grievous injuries in the accident. He filed O.P(M.V) No.753/2010 against the appellant and the insurance company claiming an amount of Rs.3,19,000/- as compensation. 4. The appellant filed written statement in the case stating that the accident occurred due to the negligence of the claimant in driving the motorcycle. He contended that the claimant was a minor at the time of the accident. He further contended that he was having a learner's licence on the date of the accident and at the time of the accident, one Mr.Fasil Abdulla Mandodan was accompanying the vehicle to instruct him and there was no violation of the conditions of the policy of insurance. M.A.C.A.No.1410/2012 3 5. The second respondent insurance company filed written statement in the case stating that the accident occurred due to the negligence of the claimant who was a minor and who was not eligible to hold a driving licence. The insurance company further contended that the appellant was not holding valid and effective driving licence at the time of the accident and that he committed wilful breach of the terms and conditions of the policy and therefore, the company stands exonerated from indemnifying the appellant, the owner of the vehicle. 6. The appellant had raised a plea in the written statement that the accident occurred due to the negligence of the claimant in driving the motorcycle. There is also a plea in the memorandum of appeal that the accident had occurred solely due to the negligence of the claimant in driving the motorcycle. However, at the time of hearing the appeal, the learned counsel for the appellant has not made any submissions on this plea. 7. The Tribunal has found that the claimant had not attained majority on the date of the accident. He was aged only 17 years and six months at that time. However, the Tribunal, on the basis M.A.C.A.No.1410/2012 4 the scene mahazar prepared by the police during the investigation of the criminal case and also on the basis of the charge sheet filed against the appellant by the police, found that the accident occurred due to the negligence of the appellant in driving the motorcycle. There is no sufficient ground to interfere with this finding of the Tribunal. True, the claimant was a minor on the date of the accident and he was not qualified to acquire a driving licence at that time. But, it does not mean that the claimant did not know riding a motor cycle. There is no presumption in law that a person who does not possess licence does not know driving (See Suleman Rahiman Mulani v. State of Maharashtra: AIR 1968 SC 829). If a person drives a vehicle without a licence, he commits an offence. The same, by itself, may not lead to a finding of negligence as regards the accident. (See Sudhir Kumar Rana v. Surinder Singh : AIR 2008 SC 2405). A person cannot be held negligent in driving a vehicle for the mere reason that he was not entitled to possess a driving licence owing to age bar. The question who is responsible for the accident has to be answered by looking into the materials on record regarding M.A.C.A.No.1410/2012 5 the cause of the accident (See National Insurance Company v. Anusha A.Nair : 2017 (2) KLT 147). In the instant case, Ext.A10 is the scene mahazar prepared by the police. It reveals that the width of the tarred road at the scene of the accident is six metres. The spot of the accident is 5.00 metres towards the south from the northern road margin. The claimant was proceeding from east to west and the appellant was proceeding from west to east. Therefore, it is evident that the appellant was on the wrong side of the road at the time of the accident and the petitioner was keeping his correct side. Ext.A11 is the copy of the charge - sheet filed by the police. The appellant alone was charge-sheeted by the police for offences punishable under Sections 279 and 338 IPC. In a claim petition for compensation filed under Section 166 of the Motor Vehicles Act, on the question of negligence, the final report in the criminal case registered in connection with the accident in question could be treated as sufficient prima facie evidence (See National Insurance Company v. Anusha A.Nair : 2017 (2) KLT 147). As a general rule, it can safely be accepted that production of the police charge - sheet is prima facie a M.A.C.A.No.1410/2012 6 sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. Prima facie, charge - sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge - sheet, the burden is on such party to adduce oral evidence and to prove otherwise (See New India Assurance Co. Ltd. v. Pazhaniammal: 2011 (3) KHC 595 : 2011 (3) KLT 648). In the instant case, the appellant did not adduce any oral evidence to prove that the accident had occurred due to the negligence of the claimant in riding the motor cycle or that there was contributory negligence on the part of the claimant. Therefore, there is no sufficient ground to interfere with the finding of the Tribunal that the accident occurred due to the negligence of the appellant in riding the motor cycle. 8. The question now arises whether the order passed by the Tribunal permitting the insurance company to recover the amount of compensation from the appellant is legal or not. Learned counsel for the appellant contended that the appellant had produced before the Tribunal his learner's driving licence and also M.A.C.A.No.1410/2012 7 the driving licence of Mr.Fasil Abdulla Mandodan to prove that a person who was having a valid driving licence was accompanying him at the time of the accident. It is true that the appellant had produced before the Tribunal Ext.B1 learner's licence in his name and also Ext.B3 licence in the name of Mr.Fasil Abdulla Mandodan. But, mere production of these documents was not sufficient to discharge his burden to prove that a person who was having a valid driving licence was accompanying him. The appellant did not enter into the witness box and gave evidence to the effect that Mr.Fasil Abdulla Mandodan was accompanying him on the motor cycle driven by him. No reason whatsoever is stated for the appellant to abstain from the witness box. Where a party to the case does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. Learned counsel for the appellant submitted that at the time of trial, Mr.Fasil Abdulla Mandodan was abroad and therefore, the appellant could not examine him before the Tribunal. Learned counsel submitted that the case may be M.A.C.A.No.1410/2012 8 remanded to the Tribunal to give the appellant an opportunity to examine Mr.Fasil Abdulla Mandodan. In the absence of any evidence given by the appellant himself regarding his plea that Mr.Fasil Abdulla Mandodan was accompanying him as a pillion rider, the prayer made for remanding the case cannot be allowed. Moreover, there is no ground taken in the memorandum of appeal that the appellant could not examine Mr.Fasil Abdulla Mandodan because he was abroad at the time of the trial of the case. 9. Ext.B4 is the copy of the policy of insurance issued in respect of the motor cycle driven by the appellant. There is a specific condition in Ext.B4 that a person holding an effective learner's licence may also drive the vehicle if such person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as 'the Rules'). Section 3 of the Motor Vehicles Act, 1988 provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him to drive the vehicle. Rule 3 of the Rules provides that the provisions of sub-section (1) of section 3 of the Act shall not apply to a person while receiving instructions M.A.C.A.No.1410/2012 9 or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as — (a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle and (b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle. Going by the mandate under Rule 3, the holder of an effective learner's licence could drive a vehicle in public place provided he is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle. In Ext.B4 certificate of insurance, it is specifically mentioned that persons holding an effective learner's licence can also drive the vehicle provided such a person satisfies the requirements of Rule 3 of the Rules. The appellant has not proved that while he was driving the motor cycle only on the strength of an effective learner's licence, an instructor holding an effective driving licence was sitting on the vehicle in such a position to control or stop the vehicle as contemplated under Rule M.A.C.A.No.1410/2012 10 3(b) of the Rules. In such circumstances, it is evident that there occurred violation of a specific condition of the policy of insurance. Since the appellant was also the owner of the vehicle he was very well aware of the conditions in the policy of insurance. He committed wilful breach of one of the conditions of the policy. 10. The issue was considered by a Division Bench of this Court in _**Abdul Gafoor v. New India Assurance Company : 2017 (1) KHC 942**_ in the light of the ruling of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh: AIR 2004 SC 1531. After referring to the decision of the Apex Court, this court has held as follows : “Virtually going by the said decision, incorporation of a condition in a policy to the effect that driving of the vehicle by a person holding only a learner's licence in public place for avoidance of the liability by the insurer would run counter to the provisions under Clause (b) of sub-section (2) of S.149. In other words, the Hon'ble Apex Court found that the holder of a learner's licence is also entitled to M.A.C.A.No.1410/2012 11 drive a motor vehicle since such a licence is also issued by an authority under the Act and the Rules to enable such a person to drive a particular class of vehicle in public place. But, at the same time, a close scrutiny of the decision would reveal that in a case where there is violation of the specific conditions of the policy and also specific condition of the licence, it would confer a right to avoid the liability to the insurer in terms of sub-section (2) of S.149 as against the insured owner though it may have to be made liable to satisfy the award as regards third parties initially. .... ... …. In subsequent decisions rendered after referring to Swaran Singh's case (supra), the Hon'ble Apex Court held that though such a reason viz., driver was not having a valid driver's licence at the time of the accident is not available to the insurance company to avoid liability against the third parties and such a ground is available to be raised to avoid liability in terms of S.149(2)(b) (ii) against the insured owner”. 11. It may also be noted that the appellant has not raised any proper plea with regard to satisfaction of the requirement M.A.C.A.No.1410/2012 12 under Rule 3(b) of the Rules. What is mentioned in the written statement filed by the appellant is that at the time of the accident, Mr.Fasil Abdulla Mandodan was accompanying the vehicle to instruct the appellant. This plea in the written statement does not satisfy the requirement of Rule 3(b) of the Central Motor Vehicle Rules. Rule 3(b) provides that the person who drives the vehicle with a learner's licence shall be accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor shall sit in such a position to control or stop the vehicle. What is mentioned in the written statement filed by the appellant is only that Mr.Fasil Abdulla Mandodan was accompanying the vehicle. The plea is not that he was accompanying the appellant, that is, he was sitting as a pillion rider of the motor cycle driven by the appellant and that he was sitting in such a position to control or stop the vehicle. There is no specific plea in the written statement filed by the appellant that Mr.Fasil Abdulla Mandodan was a pillion rider of the motorcycle driven by the appellant. What is required under Rule 3(b) is to accompany the person having the learner's licence by M.A.C.A.No.1410/2012 13 sitting on the vehicle in such a position to control or stop the vehicle. The requirement is not accompanying the vehicle. 12. The conclusion of the discussion above is that at the time of the accident, the appellant was holding only a learner's licence and he was riding the motorcycle without being accompanied by an instructor holding an effective driving licence sitting in such a position to control or stop the vehicle. Therefore, the Tribunal was right in passing an order permitting the insurance company to recover the amount of compensation payable by it from the appellant. 13. Consequently, the appeal fails and accordingly, it is dismissed. There is no order as to costs. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr