IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 MFA.No. 1312 of 2002(B) ----------------------- OPMV.831/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: RESPONDENTS 1 AND 2 ---------------------------------------------------- 1. T.RAJESH, S/O.SANKUNNY, POURNAMI, KALATHODE, OLLUKKARA P.O., THRISSUR. 2. T.RAJEEV, S/O.SANKUNNY, THEKKOOTT HOUSE, (KRISHNA VILAS) OLLUKKARA P.O., THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS RESPONDENTS: PETITIONER/3RD RESPONDENT --------------------------------------------------------------------- 1. NABEESA, W/O.HASSAN, KOZHIKKATTIL HOUSE, KECHERY.P.O. 2. NEW INDIA ASSURANCE COMPANY LTD., PERINCHERRY BUILDINGS, ROUND NORTH, THRISSUR. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.1312 of 2002 ----------------------------------------- Dated this the 22nd day of January, 2008 JUDGMENT Koshy, J. The first respondent-petitioner sustained serious injuries in a motor accident, when she was hit by the motorcycle insured by the second respondent Insurance Company. The Tribunal found that during the relevant time the vehicle was owned by the first appellant (first respondent before Tribunal) and it was ridden by the second appellant, who is the second respondent in the petition. 2. According to the Tribunal, the accident occurred due to the negligent driving of the motorcycle and after awarding compensation of Rs.63,800/-, as the second respondent had no valid driving licence, the Insurance Company was directed to deposit the award amount and recover the same from the insured. This appeal is filed challenging the award. 3. Considering the nature of injuries suffered, we see no ground to interfere with the quantum of compensation awarded. However, the major question is regarding the violation of policy condition as to whether the second respondent was having a valid M.F.A.1312/02 2 driving licence. It is the admitted case that the second respondent was holding a learner's licence. It is the case of the second respondent that he was driving the vehicle with learner's licence and the first respondent who has valid driving licence was sitting behind him as a pillion rider and Rule 3 of the Central Motor Vehicles Rules has been complied with. An 'L' board was also displayed on the front and rear side of the vehicle. In the final report filed by the police also it is stated that second respondent was holding a learner's licence at that time. The Supreme Court in National Insurance Co. Ltd. v. Swaran Singh and others (AIR 2004 SC 1551) held that if there is a valid learner's licence for driving vehicle, the person driving is a duly licensed driver and the Insurance Company cannot shirk its liability. Further, violation of policy condition was not proved by the Insurance Company. It was held by the Apex Court that if there is violation of policy condition, it is for the Insurance Company to prove the same (See Jitendra Kumar v. Oriental Insurance Co. Ltd ((2003) 6 SCC 420). Here, no evidence was adduced by the Insurance Company except producing the policy to show the existence of valid insurance. Burden is on the Insurance Company to prove that there is violation of policy condition. In this M.F.A.1312/02 3 case, second respondent was driving the motorcycle with learner's licence and the first respondent, who accompanied the second respondent had valid licence and the vehicle was having ridden with an 'L' board on the back and front side. In the above circumstances, we are of opinion that the Insurance Company cannot be exonerated from the liability and therefore, the order to recover the compensation amount from the appellants is set aside. The award is modified to the above extent. The amount deposited as a condition precedent in filing the appeal shall be refunded to the appellants. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.1312/02 4 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.1312 of 2002 ------------------------------ JUDGMENT 23.1.2008