IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 MACA.No. 1704 of 2009 -------------------------------------- OPMV.379/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT UNITED INDIA INSURANCE COMPANY LIMITED, GUDALLUR NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,"SHARANYA",HOSPITAL ROAD, KOCHI - 11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS/PETITIONERS AND RESPONDENTS 1,2 & 4 1. SHAREEFA ALENGADAN,D/O.ALASANKUTTY HAJI, ARIMANICHOLA HOUSE,MUNDEKKADU,PONMUNDAM.PO, TIRUR TALUK,PIN-676106. 2. SHADIYA.A.C,(MINOR),DO. DO. 3. SHAMEEDHA.A.C,(MINOR), DO. DO. 4. ALENGADAN KANCHIPATHU,W/O.LATE KUNHIMOIDHEEN,DO. DO. 5. ABDUL NAZAR,S/O.ALIKUTTY, KALATHINGAL HOUSE,PARAKKUNNI,OORAKAM MELMURI.P.O,VENGARA, MALAPPURAM DISRICT. 6. RAM INVESMENTS LTD,NO.4,LADY DESIKACHARI ROAD,MAILAPURE,CHENNAI,TAMIL NADU-600004. 7. NASAR,S/O.ALLAKUTTY, 12/807, DR.SIVASWAMI NAGAR,GUDALLUR,NEELGIRIS DISTRICT, TAMIL NEEDU. ADV. SRI.A.KRISHNAN FOR R7 SRI.A.AHZAR FOR R1 TO 4 SRI.S.KABEER FOR R1 TO 4 SRI.PHILIP T.VARGHESE FOR R6 SRI.THOMAS T. VARGHESE FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1704 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June 2010 JUDGMENT Basheer, J. We have heard learned counsel for the appellant and learned counsel for respondents 1 to 4 and 6. 2. This appeal is at the instance of the insurance company which has been directed by the Motor Accidents Claims Tribunal, Tirur, to satisfy the award passed in favour of respondents 1 to 4. Appellant had admittedly issued a valid insurance policy in respect of the private car which was involved in the accident. The case of the claimants was that the deceased had sustained the fatal injuries when the car in which he was travelling had capsized. The accident occurred because of the rash and negligent driving of respondent No.5 herein. They claimed a total sum of Rs.7,00,000/- as compensation under various heads. 3. Respondent No.5 owner cum driver of the vehicle did not contest the case, though he was served with notice. Respondent No.6, the financier of the car, took up the contention that it was not a necessary party in the case and the liability, if any, will have to be met by the appellant/insurance company. Later, respondent No.7 was also impleaded in the case on the ground that he was the owner of the vehicle involved in the accident. Though respondent No.7 entered appearance in the case through his M.A.C.A.No.1704 OF 2009 :: 2 :: counsel, no statement was filed on his behalf. 4. The Tribunal, after considering the oral and documentary evidence which consisted of the oral testimony of PW1 and Exts.A1 to A9 on the side of the claimants and Exts.B1 to B4 produced by the appellant/insurance company, came to the conclusion that the claimants were entitled to get a sum of Rs.4,15,000 as compensation with 9% interest thereon. The appellant/insurance company was directed to indemnify respondent No.1/the owner-cum-driver of the vehicle. The said award is impugned in this appeal. 5. Sri.Mathews Jacob, learned senior counsel who appears for the appellant, submits that he is confining his arguments only to the question whether the appellant could be held liable to indemnify respondent No.5, especially, in view of the specific contention raised by the company that the driver did not possess a valid driving license at the time of the accident and also since he had failed to produce the driving license. Learned senior counsel submits that the other contention raised by the company before the Tribunal that the company is not liable to indemnify the owner since the deceased was a passenger in the private car is also not being pressed now, in view of the fact that the policy issued by the company was a package policy. 6. Learned Senior counsel points out that respondent No.5, who was admittedly driving the offending vehicle at the time of the accident, did not M.A.C.A.No.1704 OF 2009 :: 3 :: contest the case. The appellant had filed I.A.480/07 calling up respondent No.5 to produce his license. But respondent No.5 did not respond to the said application. A perusal of the lower court records will show that the appellant had in fact filed such an application. But the prayer in the said application was to explain why respondent No.5 handed over his vehicle to an unlicensed driver. A similar petition was filed seeking for an explanation from respondent No.7, the alleged transferee of the vehicle also. He also did not offer any explanation. Learned senior counsel contends that in the absence of any explanation coming forth from these two respondents, the Tribunal ought to have drawn adverse inference against them and it should have been held that respondent No.5/respondent No.7 had permitted an unlicensed driver to drive the vehicle at the time of the accident. Though the two applications referred to above were not in fact seeking for a direction to the respondents concerned to produce the driving licence of the driver, it is apparent that the attempt of the appellant was to get a clarification from the insured/owner of the vehicle, to see whether the driver did possess a license at the time of the accident. But since these two respondents failed to give any explanation, we are inclined to accept the contention of the appellant that adverse inference ought to have been drawn by the Tribunal. Though respondent No.6 was recorded as the registered owner of the vehicle, it is also seen that the vehicle had changed hands. But there is nothing on record to show that respondent No.5 had ceased to be M.A.C.A.No.1704 OF 2009 :: 4 :: registered owner of the vehicle. It is seen from Ext.B2, which is a copy of the extract of particulars of the vehicle involved in the accident, that the vehicle had been transferred to respondent No.7. In this context, learned counsel has invited our attention to a decision of this court in Ashraf v. Fathima (2004 (2) KLT 598). 7. Anyhow, we do not propose to enter into that area of controversy. Suffice it to say that the Tribunal ought to have taken note of the fact that the owner of the vehicle had failed to show that the offending vehicle was being driven by a licensed driver at the time of the accident. In the absence of any such explanation or evidence from the registered owner, the contention of the appellant is eminently justified. Therefore, in modification of the award passed by the Tribunal, it is held that the appellant, after satisfying the award, shall be entitled to recover the award amount from respondents 5 and 7. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes