New India Assurance Company Ltd v Hemakumar and Shajans K.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934** ## **MACA.No. 596 of 2011 ( )** **-----------------------OPMV.3484/2004 of SPL.COURT FOR EC ACT CASES &MACT,THRISSUR** **APPELLANT/2ND RESPONDENT:** **---------------------------------------------** **NEW INDIA ASSURANCE COMPANY LTD, REP.BY THE MANAGER, REGIONAL OFFICE, KOCHI** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT(S):** **--------------** **1. HEMAKUMAR, S/O.VALATH PRABHAKARAN, VALAPPAD BEACH, VALAPPAD, THRISSUR DISTRICT PIN-680567** **2. SHAJANS K.A,S/O.ABBAS, KURUPPAM VEETTIL HOUSE, POST KARAYAMUTTAM, THRISSUR DISTRICT PIN-680567** **R,R2 BY ADV. SRI.N.P.SAMUEL R2 BY ADV. SRI.PLEASANT.T.SAMUEL R,R1 BY ADV. SRI.C.R.REKHESH SHARMA R,R1 BY ADV. SMT.SMITHA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N.RAVINDRAN, J.** ## **--------------------------------------** ## **M.A.C.A. No.596 of 2011** **--------------------------------------Dated this the 10[th] day of December , 2012** ## **J U D G M E N T** The appellant is the second respondent in O.P.(MV) No.3484 of 2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The first respondent is the claimant and second respondent is the first respondent therein. By award passed on 23.12.2010, the Motor Accidents Claims Tribunal awarded the sum of Rs.51,000/- as compensation to the first respondent claimant and directed the appellant herein, the insurer of the motor car involved in the accident to deposit the said amount together with interest and costs. The brief facts of the case are as follows: 2. The first respondent herein filed O.P.(MV) No.3484 of 2004 in the Motor Accidents Claims Tribunal, Thrissur alleging that at about 6 P.M. on 24.9.2004 while he was driving an autorikshaw bearing registration number KL-8/9756, it was hit by a motor car bearing registration number KL-8U/4516 owned and driven by the second respondent herein and in that accident he sustained injuries. The first respondent herein claimed the sum of Rs.1,17,000/- as compensation under various heads. The second respondent herein, the owner of the motor car filed a written statement denying and disputing his liability 2 M.A.C.A. No.596 of 2011 to pay the compensation. He also contended that in case he is held liable to pay compensation, the appellant herein, the insurer of the motor vehicle should pay the compensation. The appellant herein, the insurer of the motor car owned by the second respondent herein filed a written statement dated 23.5.2007. The appellant admitted the fact that the motor car involved in the accident was covered by a valid policy of insurance. In the Motor Accidents Claims Tribunal, no oral evidence was adduced. By consent of parties Exts.A1 to A9 series were produced and marked on the side of the claimant. The proceedings paper discloses that after the documents were marked by consent both sides were heard on 15.12.2010 and the case was posted for award to 23.12.2010. By award passed on 23.12.2010, the Motor Accidents Claims Tribunal awarded the sum of Rs.51,000/- as compensation and directed the appellant herein to deposit the said amount together with interest and costs. Hence this appeal. 3. The main contention raised in the appeal is that the second respondent herein was driving the motor car at the time of accident and he did not possess a valid driving license, that he had only a learners license and therefore the appellant is entitled to recover the amount of compensation paid by it from the second respondent. Reliance was placed on the decision of a Division Bench of this Court in 3 M.A.C.A. No.596 of 2011 **Jose** v. **Chacko** (2001(3) KLT 633) in support of the said contention. The appellant also relies on Ext.A2 final report to contend that the second respondent herein did not possess a valid driving license but had only a learners license on the date of the accident. When the appeal was taken up for consideration today, Sri.Rajan P.Kalliyath, learned counsel appearing for the appellant, contended that though the appellant had filed I.A.No.10246 of 2010 to advance the hearing of the case from 5.12.2010, the date on which it was posted for award to 3.12.2010, for filing an application to call upon the second respondent herein to produce his driving license accompanied by I.A.10240 of 2010 to reopen the evidence, the Motor Accidents Claims Tribunal did not consider the said applications. The learned counsel contended that Ext.A2 final report discloses that the second respondent herein who was admittedly driving the motor car on the date of the accident did not possess a valid driving license but possessed only a learners license and therefore, the appellant is entitled to recover the amount of compensation paid by it. Sri.Pleasant P.Samual, learned counsel appearing for the second respondent contended that there was no charge against the second respondent that he was driving the motor car unaccompanied by an instructor as stipulated in rule 3 of the Central Motor Vehicles Rules, 1989, that the only charge levelled M.A.C.A. No.596 of 2011 4 against the second respondent in Ext.A2 final report was that he possessed only a learners license and therefore, no reliance can be placed on Ext.A2 final report to contend that the second respondent was not accompanied by an instructor as stipulated in rule 3 of the Central Motor Vehicles Rules, 1989. Referring to the written statement filed by the appellant and the averments in I.A.No.10246 of 2010 and I.A.No.10247 of 2010 filed by the appellant, learned counsel for the second respondent contended that even in the written statement or in the said applications the appellant had no case that the second respondent had violated rule 3 of the Central Motor Vehicles Rules and therefore, the contention now sought to be raised is liable to be rejected. 4. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. A perusal of the written statement filed by the appellant discloses that it had no case at any point of time prior to the filing of I.A.No.10246 of 2010 and I.A.No.10247 of 2010 that the second respondent herein, the owner and driver of the motor car involved in the accident did not possess a valid driving license or that he was not authorised to drive the motor car. On the other hand, the case set out in the written statement filed 5 M.A.C.A. No.596 of 2011 by the appellant was that the second respondent herein was driving the motor car cautiously and observing all the traffic rules and not rashly and negligently as alleged. It was also contended that it was on account of the negligence of the claimant that the accident occurred. Though in the written statement the appellant had raised the contention that the second respondent herein was charge sheeted for not having a driving license at the time of the accident and therefore the appellant is not liable to compensate the petitioner, the appellant had no case that the second respondent possessed only a learners license and he was not accompanied by an instructor as stipulated in rule 3 of the Central Motor Vehicles Rules at the time when the accident occurred. Even in the applications filed on 2.12.2010, no such plea was raised. The only averment in I.A.No.10246 of 2010 is that the case may be advanced to 3.12.2010 so as to enable the appellant to file an application and call upon the second respondent herein to produce his driving license. The only averment in I.A.No.10247 of 2010 filed on 2.12.2010 is that the second respondent had only a learner's license and a petty case is charged against him. Even in the said applications, the appellant had no case that the second respondent herein was not accompanied by an instructor duly licensed to drive a motor car as required under rule 3 of the Central 6 M.A.C.A. No.596 of 2011 Motor Vehicles Rules, 1989. 5. The proceedings paper discloses that after the petitioner's evidence was closed on 6.3.2010, the case was posted to 6.4.2010 for the respondents' evidence. On 6.4.2010 there was no sitting and therefore the claim petition was adjourned to 2.6.2010. On 2.6.2010 it was adjourned to 30.11.2010 to explore the possibility of an out of court settlement. On 30.11.2010 there was no representation for the respondents and therefore the claim petition was posted for hearing to 5.12.2010. On 5.12.2010 at the request of both sides the case was adjourned for hearing to 15.12.2010. On 15.12.2010 both sides were heard and thereafter the case was posted to 23.12.2010 for passing the award. An award was accordingly passed on 23.12.2010 awarding the sum of Rs.51,000/- as compensation to the first respondent claimant and directing the appellant to pay the said amount together with interest and costs. It is evident from the pleadings and the materials on record that the appellant had no case at any point of time that the second respondent who possessed only a learner's license was not accompanied by a duly licensed driver authorised to drive a motor car as required under rule 3 of the Central Motor Vehicle Rules, 1989. Even in Ext.A2 final report, the allegation levelled against the second respond was that he had driven the motor car rashly and negligently M.A.C.A. No.596 of 2011 7 and that as a result of the rash and negligent driving it hit against the autorikshaw, thereby causing injuries to the claimant. There was no allegation that the second respondent was not accompanied by a duly licensed instructor thereby violating rule 3 of the Central Motor Vehicles Rules. In the absence of any such allegation, the appellant cannot in my opinion be heard to contend that the second respondent was not accompanied by a duly licensed driver as required under rule 3 of the Central Motor Vehicles Rules. The burden was on the appellant to plead and prove that the second respondent herein who was driving the motor car had violated rule 3 of the Central Motor Vehicles Rules and was not accompanied by a duly licensed driver who was in a position to control the vehicle. In the absence of any such pleading or proof the appellant cannot in my opinion successfully assail the impugned award. For the reason stated above, I hold that there is no merit in the instant appeal. The appeal fails and is accordingly dismissed. No costs. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge