IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MFA.No. 1191 of 2001(D) --------------------------------- OPMV.525/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANTS/ADDITIONAL RESPONDENT 4 TO 8 IN THE OP: -------------------------------------------------------------------------------------- 1. L.ANILKUMAR, SAROJA BHAVAN, KARAMOODU, VELLARADA P.O., NEYYATTINKARA TALUK. 2. SAROJAM, KARIOT VILAKOM, KARAMOODU, -DO- 3. L.KUMAR, SAROJA BHAVAN, KARAMOODU, -DO- 4. L.JAYAKUMAR, -DO- 5. L.GOPAKUMAR. -DO- BY ADV. SRI.S.JAMES VINCENT SRI.R.GOPAN RESPONDENTS-APPLICANT AND RESPONDENTS 2 & 3 IN THE OP: ----------------------------------------------------------------------------------------------- 1. MRS. SUSEELA, W/O.THOMAS, PANAYAD ROADARIKATHU PUTHEN VEEDU, VELLARADA P.O., NEYYATTINKARA TALUK. *2. SAKKIR HUSSAIN, THADATHARIKATHU VEEDU, THEKKUPARA PO., TRIVANDRUM DIST. (* REMOVED) * THE SECOND RESPONDENT IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER , VIDE ORDER DATED 01/07/2002 ON CMP.3798/2002. 3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., TRIVANDRUM. ADV. SRI.MATHEWS JACOB FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2008, ALONG WITH OP NO. 32337 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No. 1191 of 2001 ORDER ON CMP NO.8195/2001 IN MFA. NO.1191/2001 DISMISSED 04/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- M.F.A.No. 1191 OF 2001 & O.P.No. 32337 OF 2001 --------------------------------- Dated this the 4th day of December, 2008 JUDGMENT This M.F.A and O.P are preferred against the award of the Motor Accident Claims Tribunal, Neyyattinkara in O.P.(MV) No.525/94 and O.P.(MV) No. 527/94 respectively. The tribunal awarded a compensation of Rs. 49,000/- in O.P. 525/94 and Rs. 9,500/- in O.P. 527/94 and directed the Insurance Company to pay the amount and recover it from the respondents 4 to 8 on satisfaction of the award. The interest granted is at the rate of 12%. The brief facts is necessary for disposal of the appeal are as follows: 2. The claimant in O.P. 525/94 while walking along with her minor daughter was hit by a mini lorry on 28.11.93 resulting in sustainment of injury. In the claim application it is contended that it was the 2nd respondent who had driven the vehicle. The contention of the Insurance Company is to the effect that the vehicle was driven by the son of the owner namely the 4th respondent and he did not have a valid driving licence and therefore M.F.A.No. 1191/2001 & O.P No. 32337/2001 -2- it is entitled to the recovery right. The tribunal after considering the matter elaborately arrived at a decision that it was the 4th respondent who had driven the vehicle and that he did not have a valid driving licence. Being a third party it directed the Insurance Company to satisfy the award and recover the amount from respondents 4 to 8 in the claim application. 3. A perusal of the ward would reveal that the evidence of PW1 and PW2 regarding the identity of the driver as 2nd respondent in the claim petition was not acceptable. The tribunal found that it was a hit from behind and the mini lorry went away and that PW1 has not identified the driver. PW2 has admitted that he was not a eye witness to the accident. It is true when PW1 was examined, she had stated the name of the 2nd respondent as the driver. But when she was cross examined to the effect that whether it was the 4th respondent who was driving the vehicle, her answer was that, she does not know. The 3rd respondent Insurance Company had also adduced evidence in this case. The police after investigation filed charge sheet against the 4th respondent for rash and negligent driving. The Inspector of the Vellarada police station filed charge M.F.A.No. 1191/2001 & O.P No. 32337/2001 -3- sheet against 4th respondent. It is true that the witness turned hostile and the case against the 4th respondent was not proved. In that case there was failure of identity of the driver. On 18.8.94, the Divisional Manager of the Insurance Company issued a letter to the 1st respondent contending that the 2nd respondent was not the driver of the vehicle and actually some other person not having a valid driving licence was the driver. But in the reply the 1st respondent asserted that the 2nd respondent was the driver. Immediately after the accident the vehicle was inspected by the Joint R.T.O and the copy of the A.M.V.I report would reveal that the name of the driver is shown as Anil Kumar (4th respondent). Ext. B6 is a certified copy of the notice issued by the Sub Inspector of Policy, Vallarada to the 1st respondent requesting him to furnish the name and address of the driver of the mini lorry. To that, the 1st respondent had sent a reply and in that reply dated 28.11.93 which is proved through RW2, there is a celar admission made before the Sub Inspector that it was Anil Kumar (R4) who was driving the vehicle. So when the owner of the vehicle himself on receipt of a notice furnished information that it was Anil Kumar who was driving M.F.A.No. 1191/2001 & O.P No. 32337/2001 -4- the vehicle and when that document is proved by examining the competent witness one cannot ignore that document and hold otherwise. It is also to be remembered that this 4th respondent Anil Kumar is none other than the son of the owner namely the 1st respondent. So a reading of the entire materials supported by documents would convincingly establish that the vehicle was driven by Anil Kumar, the 4th respondent at the time of the accident and therefore the tribunal cannot be found fault with for arriving at such a decision. 4. The learned counsel for the appellant very strongly contends before me that when the owner had employed person having a valid driving licence to drive the vehicle and suppose somebody else drives the vehicle and meets with an accident, the fault cannot be attributed on the owner for the reason that he is innocent of the same and so the Insurance company cannot get exonerated from the liability. At the out set it has to be said that there is no case for the 1st respondent that the 4th respondent had stealthily removed the vehicle and was driving the same. The 4th respondent is none other than the son of the 1st respondent and 1st M.F.A.No. 1191/2001 & O.P No. 32337/2001 -5- respondent is totally expected to be fully aware of the fact that the son did not have a valid driving licence. It is incumbent upon the owner to ascertain at the time of entrusting a vehicle to a person, whether he is having a valid driving licence or not. Without compliance of any of these conditions it cannot be held that the owner is innocent and so as to cast the liability on the insurer. Here the son of the 1st respondent namely the 4th respondent with the full knowledge and consent of the 1st respondent had driven the vehicle and met with an accident resulting in injuries to the claimant. The owner cannot wash off his liability and there is certainly breach of policy conditions and so I hold that the tribunal was perfectly justified in holding that there is breach of policy conditions which entitles the Insurance Company to get the amount recovered from the person mentioned in the award. 5. Lastly the learned counsel for the appellant submits before me regarding interest. Unfortunately it has been stated that the insurer had paid the interest and therefore whatever is paid by him is to be reimbursed by the owner to the Insurance Company and so any deletion or reduction of interest against the person who had M.F.A.No. 1191/2001 & O.P No. 32337/2001 -6- paid the amount, cannot be done at this stage. The Insurance Company is directed and permitted to realise the amount paid by it from the 1st respondent but with future interest on the principal amount awarded at the rate of 7.5% per annum from the date of payment. Both M.F.A and O.P are disposed of accordingly. M.N. KRISHNAN,JUDGE vkm