The Oriental Insurance Co. Ltd. v. K.P. Unnikrishnan Kalathil Purayil and Abdul Azeez

1 MACA No.1056 of 2006 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** **MACA NO. 1056 OF 2006** **AGAINST THE ORDER/JUDGMENT IN OPMV 108/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/S:** THE ORIENTAL INSURANCE CO.LTD METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. BY ADV SRI.VPK.PANICKER ## **RESPONDENT/S:** 1 K.P.UNNIKRISHNAN KALATHIL PURAYIL, PADANNA VILLAGE,, KASARGOD DISTRICT. 2 ABDUL AZEEZ. A., S/O. P.K. HASSAINAR KELI MANZIL, HOUSE NO.V/334,, P.O. KAYYAR, UPPALA, PAIVALIKE,, KASARGOD DISTRICT. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1056 of 2006 ## **C.S.DIAS, J.** ## **====================== MACA No.1056 of 2006** ## **====================== Dated this the 16[th] day of September, 2021.** ## **JUDGMENT** The appellant – insurer was the third respondent in OP(MV) 108/2002 on the file of the Motor Accidents Claims Tribunal, Kasargod. The respondents in the appeal were the respondents 1 and 2 before the Tribunal. The appellant has not impleaded the claimants before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to the second petitioner, by name, Fousia, in a road accident on 25.9.2001. It was their case that while the second petitioner was walking to her house, she was knocked 3 MACA No.1056 of 2006 down by an auto rickshaw bearing registration No.KL14/4355 (auto rickshaw) driven by the first respondent in a rash and negligent manner. The second respondent was the owner and the third respondent was the insurer of the auto rickshaw. The second petitioner was a student aged 13 years. She sustained fractures and was treated as an inpatient from 25.9.2001 to 29.9.2001. Hence, the petitioners claimed a compensation of Rs.1,29,000/- from the respondents, which was limited to Rs.75,000/-. 3. The respondents 1 and 2 did not contest the proceeding. 4. The third respondent - insurer filed a written statement admitting that the auto rickshaw had a valid insurance policy. Nevertheless, it was contended that the first respondent did not hold a valid driving licence. Hence, the third respondent may be absolved of its liability. 5. The petitioners produced and marked Exts A1 to 4 MACA No.1056 of 2006 A5 series in evidence. The third respondent produced Ext B1 – copy of the insurance policy and Ext B2 chargesheet filed by the Police and marked them in evidence. 6. Even though the third respondent had raised a contention in the written statement that the first respondent did not hold a valid driving licence, the Tribunal held that the absence of the driving licence will not tantamount to violation of the insurance policy conditions, therefore the insurer is liable to pay the compensation. Accordingly, the Tribunal allowed the claim petition by permitting the petitioners to realise an amount of Rs.25,250/- with interest and costs from the third respondent. 7. Aggrieved by the impugned award, the third respondent – insurer is in appeal. 8. Heard; Sri.V.P.K Panicker, the learned counsel appearing for the appellant - insurer. Although notice has been served on the respondents 1 and 2, there is no 5 MACA No.1056 of 2006 appearance for them. 9. The learned counsel appearing for the appellant submitted that the appellant has paid the entire compensation amount to the claimants as per the impugned award. The appellant only seeks a right of recovery as provided under Sec.149 of the Motor Vehicles Act. It is for the limited extent that the appeal has been filed. 10. The sole question that arises for consideration in the appeal is whether the direction of the Tribunal that the appellant/third respondent has to pay the compensation amount is sustainable in law or not? 11. Although the Tribunal found that the appellant had taken a contention that the first respondent did not hold a valid driving licence, the Tribunal for the reason that absence of a driving licence will not tantamount to violation of policy conditions refused to grant the appellant the right of recovery of the compensation 6 MACA No.1056 of 2006 amount from the insured. 12. The legal position with regard to the right of recovery of the insurer in the case of absence of driving licence of the driver of a vehicle is no longer res integra. In a most recent decision in **Beli Ram vs Rajinder Kumar** (See Civil Appeal Nos 7220-7221 of 2011), the Hon'ble Supreme Court has held that it is the bounden duty of the employer to see that his employee has a valid driving licence while driving the vehicle. If the driver of the vehicle does not hold a valid driving licence, the insurer can be absolved of its liability. 13. A larger Bench of this Court in **Oriental Insurance Co., Ltd vs. Poulose** [2015 (1) KLT 682] after construing the provisions in Section 149 of the Act and relying on the decision of the Hon'ble Supreme Court in **National Insurance Co., Ltd vs Swaran Singh** [2004 (1) KLT 781(SC)] has held that the insurer has the right to recover the compensation amount paid to the insured in 7 MACA No.1056 of 2006 case the driver of the vehicle does not hold a valid driving licence. 14. In the instant case, the appellant had specifically pleaded in the written-statement that the first respondent did not hold a valid driving licence. The appellant also produced Ext B2 charge-sheet which shows that the first respondent was charged with an offence punishable under Sec.3 (1) read with Sec.181 of the Motor Vehicles Act,1988 in addition to Secs 279 and 337 of the Indian Penal Code. 15. In **New India Assurance Co.Ltd v. Pazhaniammal [(2011) (3) KLT 648]** , this Court has held that as a general rule, the production of the chargesheet is prima facie sufficient evidence of negligence for the purpose of claim under Sec.166 of the Motor Vehicles Act, 1988. The charge-sheet can be accepted as evidence of negligence as against the accused driver. If any party does not accept the charge-sheet, the burden is on such 8 MACA No.1056 of 2006 party to adduce oral evidence and discredit the chargesheet. 16. In the present case, Ext B2 charge-sheet proves that the first respondent did not hold a valid driving licence which corroborates with the assertions in the written-statement. The respondents have not let in any contra evidence or produced the driving licence of the first respondent to disprove the assertion of the appellant in the above regard. Therefore, adverse inference has to be drawn against the respondents 1 and 2 for non-production of the driving licence and it is to be only inferred that the first respondent did not hold a valid driving licence. Thus, the findings of the Tribunal that the absence of driving licence of the first respondent does not tantamount to the violation of the policy conditions is erroneous and in direct conflict with settled proposition of law. Hence, I set aside the findings and hold that the respondents 1 and 2 are jointly and severally liable to pay the compensation 9 MACA No.1056 of 2006 amount discharged by the appellant pursuant to the impugned award. In the result, the appeal is allowed. The appellant is permitted to realise the entire compensation amount with interest and cost paid by it pursuant to the impugned award from the respondents 1 and 2. sd/- sks/16.9.2021 **C.S.DIAS, JUDGE**