IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 MACA.No. 773 of 2005() ---------------------- OPMV.1749/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/1ST RESPONDENT: --------------------------------------- BIJU, S/O. SUBRAMANIAN, KAIPPARAKKAL HOUSE, PONNORE, PARAPPUR, THRISSUR. BY ADV. SRI.JIJO PAUL RESPONDENT/PETITIONER AND 2ND RESPONDENT: --------------------------------------- 1. KOCHA, S/O. AYYAPPAN, VALIPARAMBIL HOUSE, P.O. ERANELLOOR, (VIA) KECHERI, THRISSUR. 2. THE NEW INDIA ASSURANCE CO.LTD., ANUGRAHA BUILDING, WADAKKANCHERI ROAD, KUNNAMKULAM. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ----------------------------------- M.A.C.A. No.773 of 2005 ------------------------------------- Dated this the 23rd day of July, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. 1. The 1st respondent in O.P(MV) No:1749/95 on the files of the Motor Accidents Claims Tribunal, Thrissur is the appellant herein. He is the owner/rider of the Motor Cycle which involved in the accident. The claimant before the Tribunal, when walking along the public road, was knocked down by the Motor Cycle driven by the appellant. The Insurance Company contended that the appellant/1st respondent was holding only Learner's licence, and therefore he is not a person authorised to drive the Motor Cycle. They refuted liability on that ground. The Tribunal found that under the provisions of Section 149 of the Motor Vehicles Act 1988 the insurance company cannot avoid liability, but it is held that they have got a right of recovery from the appellant, as per the proviso to Section 149 of the Act. 2. The contention of the appellant is that since it has come out in evidence that the appellant was holding a valid Learner's licence, and the person who was the pillion rider (RW1) was holding a valid driving licence, it cannot be said that the rider of the motor cycle was not authorised to drive the MACA.773/05 2 vehicle. Therefore the Insurance Company cannot claim exoneration from the liability. 3. In the decision of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Swaran Singh (2004 (1) KLT 781 SC) it is held that the Motor Vehicles Act provides for grant of Learner's licence and therefore a Learner's licence is also a licence within the meaning of the provision of the said Act. Therefore it cannot be said that the vehicle when being driven by a learner, subject to conditions mentioned in the licence, he would not be a person who is not duly licensed, to reserve any conferring right on the insurer to avoid claim made by any third party. In the case at hand it is evident that the conditions stipulated under the Rule is satisfied because the pillion rider was holding a valid licence. Therefore going by the dictum laid by the Hon'ble Supreme Court the insurance company cannot avoid liability in this case. In the result, the appeal is allowed modifying the award to the extent of cancelling the right of recovery conferred on the 2nd respondent insurance company to recover the amount of compensation from the appellant/1st respondent. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb