IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 MFA.No. 1414 of 2001(A) ---------------------------------- OPMV.4097/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT - 3RD RESPONDENT: --------------------------------------------- THE ORIENTAL INSURANCE COMMPANY LIMITED, VADAKARA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI - 18. BY ADV. SRI.MATHEWS JACOB RESPONDENTS - PETITIONER AND RESPONDENTS: -------------------------------------------------------------------- 1. KADEEJA, W/O. AMMED, NADUVILAKANDY, VILAYATTOOR AMSOM, ELAMBILAD DESOM, QUILANDY TALUK, IRINGATH POST. 2. VALAPPIL POLI V.P. RAJEEVAN, S/O. KUNHICHOYI, KOZHUKKALLUR, NARAKKODE, PIN - 673 524. 3. KUNHAMMED, S/O. POCKER, NALUPURAKKAL HOUSE, KOZHUKKALLUR P.O., MEPPAYUR (VIA), PIN - 673 524. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH SMT.K.V.RESHMI THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.F.A. NO.1414 OF 2001 = = = = = = = = = = = = = = = = = = = Dated this the 13th day of February, 2008 J U D G M E N T -------------------- Third respondent-Insurer in O.P(MV) No.4097 of 1995 on the file of the Motor Accidents Claims Tribunal, Vadakara, is the appellant. Appeal is filed against the award passed by the Tribunal by which the appellant was directed to indemnify the insured to the extent of Rs.20,800/-. 2. First respondent in the appeal met with an accident on 20.7.1995. The case of the first respondent was that while she was walking along the public road from Meppayur, a Scooter bearing Reg. No.KED-5512 ridden by the second respondent came in a rash or negligent manner and hit against the person of first respondent causing injuries. She filed the petition claiming Rs.1,50,000/- as compensation. Owner and driver of the Scooter did not appear and contest. Appellant-Insurer alone contested the case by filing a written statement. It was admitted that the vehicle was covered with a valid policy of insurance. The main contention raised was M.F.A. NO.1414 OF 2001 -: 2 :- that there was no negligence on part of the second respondent, driver of the Scooter. It was also contended that the claim of compensation was highly excessive. Subsequently, appellant filed an additional written statement in which also it was specifically contended that at the time of the accident, the rider of the Scooter was not having a valid driving licence to ride the Scooter and as such there is violation of policy conditions. No oral evidence was adduced either by the appellant or respondents. At the instance of the appellant particulars of the driving licence issued to the second respondent was produced. The particulars showed that the second respondent was having valid driving licence to drive a light motor vehicle only but he was not having a licence to ride a two wheeler. 3. Tribunal found that the accident occurred due to the negligence of the second respondent. It further found that the first respondent is entitled to a compensation of Rs.20,800/-. It also found that the appellant failed to adduce any cogent and convincing evidence to hold that the driver of the Scooter was not having a valid driving licence. Tribunal directed the appellant to pay the compensation awarded. Challenging that M.F.A. NO.1414 OF 2001 -: 3 :- decision, this appeal is filed. 4. Finding of the Tribunal that the accident occurred due to the negligence of the rider of the Scooter is a finding based on good evidence. The further finding of the Tribunal that the first respondent is entitled to get Rs.20,800/- as compensation is also correct and it does not call for any interference. 5. Learned counsel appearing for the appellant argued that the specific contention put forward by the appellant in the written statement as well as the additional written statement was that the rider of the Scooter was not having a valid driving licence to ride a Scooter. It is argued that he was possessed of a driving licence as evidenced by Exhibit X1, which was only in respect of light motor vehicles and not two wheeler. It is argued that the mere fact that the second respondent was having a licence to drive a four wheeler is not sufficient to hold that he is authorised to drive a two wheeler also. Tribunal found that the appellant failed to adduce cogent and convincing evidence that the rider was not having a valid driving licence. At the instance of the appellant, Exhibit X1 was produced. It shows that on the date of M.F.A. NO.1414 OF 2001 -: 4 :- accident, second respondent was having a licence to drive a light motor vehicles only. So the finding of the Tribunal that the appellant failed to adduce evidence is illegal and liable to be set aside. 6. The further question arising for consideration is whether the appellant be made liable to pay the compensation awarded and then to recover the same from respondents 2 and 3, driver and owner of the Scooter. Learned counsel appearing for respondents 1 and 2 relying on the decision reported in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781 (SC) argued that merely by establishing that the driver of the Scooter was not having a driving licence the Insurer cannot be exonerated. It is argued that the Tribunal shall take a decision as to whether the fact that the second respondent was possessing a driving licence for one type of vehicle but found driving another type of vehicle had contributed to the accident. Of course, there is no such finding in the case. So for deciding that issue, the matter has to go back. 7. In the result, the appeal is allowed in part. The findings of the Tribunal that the accident occurred due to the M.F.A. NO.1414 OF 2001 -: 5 :- negligence of the rider of the Scooter and the first respondent is entitled to Rs.20,800/- as compensation are confirmed. The case is remanded for the purpose of deciding whether there was violation of policy conditions. The Tribunal shall consider the question whether the first respondent, rider of the Scooter, who was in possession of a licence to drive light motor vehicles, was found driving a Scooter without a valid licence. I make it clear that the appellant shall pay the compensation awarded and then recover the same from the insured if it is ultimately found that there was violation of policy conditions. Parties are directed to appear before the Tribunal on 17.3.2008. Tribunal shall take a decision in the matter within three months from the date of appearance of the parties before it. It is also made clear that the appellant shall deposit the entire amount and the first respondent, petitioner in the Original Petition can withdraw the same. Civil Miscellaneous Petition No.9299 of 2001 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. NO.1414 OF 2001 ===================== J U D G M E N T ------------------------------------------- 13TH FEBRUARY, 2008