United India Insurance Company Ltd. v. Thresiamma and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M.C. Hari Rani
Judgment Date: 2011-10-13
Court Decision / Holding: This appeal is allowed. A further direction is issued under Section 149(4) of the M.V.Act that the appellant/insurer shall be entitled to recover the amount paid by the appellant to satisfy the impugned award from the 10th respondent along with interest at the rate of 6% per annum from the date of deposit to the date of realisation.
Final Disposition: The appeal is allowed; insurer to recover the amount from the owner under Section 149(4) of the MV Act with 6% interest per annum from the date of deposit to realization.

Parties to the Case

Appellants / Petitioners

United India Insurance Company Ltd.

Respondents

Thresiamma
George Joseph
Philomina Stanley
Mercy Joseph
Sebastian
Viju
Bindu Titus
Siji Joseph
Sali Joseph
C.I. Abdul Rahman
Shine

Legal Representation & Advocates

Counsels for Petitioners

• Sri Rajan P. Kaliyath

Case Synopsis & Summary

Insurance company is the appellant. The original claimant had claimed compensation for personal injuries in a motor accident that occurred on 26/08/1999. The claimant died during the pendency of the proceedings; his legal representatives were brought on record. The Motor Accident Claims Tribunal, Paravur, by the impugned award, directed payment of Rs.1,04,750 and the insurer was directed to satisfy the award. The insurer contends that the driver of the vehicle did not possess a valid driving licence at the time of the accident. The owner of the vehicle was served but did not enter appearance; service on the driver was declared. The insurer relied on Ext.A1 charge sheet stating the driver had no valid licence; the insurer also filed an application to obtain the driver’s licence, but the owner and driver did not produce it. The insurer argued that under Section 149(2)(a)(ii) of the MV Act this constitutes a ground to enable recovery from the owner under Section 149(4). The court finds that the lack of a valid driving licence is a justifiable ground; relying on National Insurance Co. Ltd. v. Swaran Singh (2004(1)KLT 781), the court holds that the insurer is entitled to recover. The appeal is allowed; the insurer shall recover the amount from the owner with interest at 6% per annum from the date of deposit to realization.

Provisions of Law Cited

Section 149(4) of the Motor Vehicles ActSection 149(2)(a)(ii) of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer contends that the driver of the vehicle involved in the accident did not hold a valid driving licence at the time of the accident. In Ext.A1 charge sheet the driver is stated to have no valid licence. The insurer repeatedly sought the production of the licence from the owner and driver, but they did not produce. On this basis the insurer contends that under Section 149(2)(a)(ii) of the Motor Vehicles Act, the insurer is entitled to recover the amount paid under the impugned award from the owner of the vehicle (10th respondent) and thus the appeal should be allowed. The evidence on record sufficiently establishes lack of licence and the insurer has discharged its burden.

Contentions of Respondents

The respondents (claimants) defended the Tribunal’s findings and contend that the ownership party and driver’s licensure were not conclusively proven, and the Tribunal’s decision should stand. They challenge the insurer’s attempt to frame the accident through a lack of driving licence as a basis for recovery from the owner under Section 149(4). They rely on the evidence of the police and the Tribunal’s assessment that there was no definitive proof that the driver lacked a valid licence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Co.Ltd. v. Swaran Singh	2004(1)KLT 781	Positive	Cited to justify the insurer's right to recover under Section 149(2)(a)(ii) where the driver lacks a valid driving licence.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 MACA.No. 537 of 2011() ---------------------OPMV.466/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT/3RD RESPONDENT -------------------------------------- UNITED INDIA INSURANCE COMPANY LTD, REP.BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE,SHARANYA,HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/ADDL.PETITIONERS 2 TO 10 & RESPONDENTS 1 & 2 RESPECTIVELY --------------------------------------- 1. THRESIAMMA,W/O.THE LATE T.G.JOSEPH THANNIKAPARAMBIL HOUSE,OLANAD KARA, ALANGAD VILAGE, ERNAKULAM DISTRICT. 2. GEORGE JOSEPH,S/O.LATE T.G.JOSEPH -DO- 3. PHILOMINA STANLEY,D/O.LATE T.G.JOSEPH, -DO- 4. MERCY JOSEPH,D/O.LATE T.G.JOSEPH, -DO- 5. SEBASTIAN,S/O.LATE T.G.JOSEPH, - -DO- 6. VIJU,S/O.LATE T.G.JOSEPH, -DO- 7. BINDU TITUS,D/O.LATE T.G.JOSEPH, -DO- 8. SIJI JOSEPH,D/O.LATE T.G.JOSEPH, -DO- 9. SALI JOSEPH,D/O.LATE T.G.JOSEPH, -DO- 10. C.I.ABDUL RAHMAN,HEAD OF THE DEPARTMENT CHEMISTRY, ST.PAULS COLLEGE,KALAMASSERY. 11. SHINE,S/O.VAKKO,PERIKASSERY VEEDU, VALLUVALLIKARA,KOTTUVALLY,ERNAKULAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.537 of 2011 ---------------------------------------Dated this the 13[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Insurance company is the appellant. The original claimant had staked the claim for compensation for personal injuries suffered by him in a motor accident which took place on 26/08/1999. The claimant died during the pendency of the proceedings before the tribunal. His legal representatives came on record. The tribunal, by the impugned award, directed payment of an amount of Rs.1,04,750/-. The appellant/insurance company was directed to satisfy the award. 2. We have heard the learned counsel for the appellant/insurance company. The owner of the vehicle, though served, has not chosen to enter appearance. Service on the driver has been declared. 3. Called upon to explain the nature of the challenge, the learned counsel for the appellant submits that the driver of the vehicle was not having a valid driving licence at the time of the accident. He contends that the appellant/insurer is hence 2 M.A.C.A.No.537 of 2011 entitled to an order under Section 149(4) of the Motor Vehicles Act enabling the appellant to recover the amount from the owner of the vehicle that is 10[th] respondent in this appeal (that is the 1[st] respondent before the tribunal). 4. The insurer had raised the specific contention that the driver did not have a valid driving licence. The tribunal felt that there is no evidence to prove the same. The learned counsel for the appellant points out that in Ext.A1 charge sheet, it is very clearly stated that the driver has no valid driving licence. In addition to this, the insurer had filed an application calling upon the driver to produce the driving licence. In spite of such an application, the owner and the driver did not produce the driving licence. In these circumstances, the appellant has satisfactorily discharged his burden to show that the driver did not have a valid driving licence on the date of the accident, contends the learned counsel for the appellant. 5. We find the contention to be justified. The plea has been specifically raised and the available indications convincingly show that the driver did not have a valid driving licence to drive the vehicle at the relevant time. Going by the 3 M.A.C.A.No.537 of 2011 decision in **National Insurance Co.Ltd. v. Swaran Singh [2004(1)KLT 781]** the want of a driving licence at all for the driver must certainly be reckoned as a justifiable ground for the insurance company under Section 149(2)(a)(ii) of the M.V.Act to claim a right to recover the amount from the owner of the vehicle. 6. We are satisfied, in these circumstances, that the appellant is entitled to succeed in this appeal. 7. In the result, - a) This appeal is allowed. - b) A further direction is issued under Section 149(4) of the M.V.Act that the appellant/insurer shall be entitled to recover the amount paid by the appellant to satisfy the impugned award from the 10[th] respondent along with interest at the rate of 6% per annum from the date of deposit to the date of realisation. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.537 of 2011 4 M.A.C.A.No.537 of 2011 5 6 M.A.C.A.No.537 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010