IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 MACA.No. 1664 of 2005() ----------------------- OPMV.300/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPLICANT: ------------------------------------------- MOHANAN, S/O.APPU ASSARI, KUKKANPARA, PUTHUVAL PUTHEN VEEDU, MANIKANTESWARAM P.O., VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. MR.P.R.SHAJI RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. SUKUMARAN NAIR, S/O.AMMUKUTTY AMMA, PANAYIL VEEDU, UP-10/14, KARIYAM, SREEKARIYAM, THIRUVANANTHAPURAM. 2. SASI, S/O.KARUNAKARAN, PANIKKANVILAKATHU VEEDU, SREEKARIYAM, THIRUVANANTHAPURAM. 3. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., THIRUVANANTHAPURAM. R1 BY ADVS. MR.R.T.PRADEEP, MR.V.VIJULAL. R3 BY ADV.MR.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1664 OF 2005 ............................................. Dated this the 3rd day of December, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Trivandrum in OP(MV)No.300/1997. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.47,980/=. The Tribunal exonerated the insurance company from the liability and directed the amount to be realised from the first respondent. The appellant has come up in appeal challenging inadequacy of the quantum as well as the liability. 2. Heard the learned counsel for all. Let me first consider about exoneration of the insurance company from the liability. The learned counsel for the appellant had three fold contentions; one is to the effect that the insurance company has failed to prove absence of a driving licence and secondly, even if there is evidence regarding the driving licence, fundamental breach has to be proved and lastly, at any rate, being a third party, he is liable to be paid by the insurance company and right of recovery alone can be : 2 : M.A.C.A.No.1664 OF 2005 granted to the insurance company against the owner. 3. The learned Tribunal in para-7 had discussed about the licence. A perusal of that paragraph would reveal that even learned Tribunal was not satisfied with the evidence of RW1 regarding the absence of driving licence. The administrative officer of the insurance company was examined and he had just stated that the driver did not have any valid driving licence and even the source of enquiry was not revealed. But the court felt that since RW1 had said so, the burden is on the claimant to prove it otherwise. 4. I disagree with the finding and hold that it is for the insurance company to prove the absence of a driving licence for the reason that it is raising the contention of breach of policy conditions. If the burden is not discharged by the insurance company, the company will be liable to pay the amount. These are all matters which can be proved by cogent and documentary evidence. 5. The learned counsel for the insurance company wanted me to give an opportunity to prove it, which I am : 3 : M.A.C.A.No.1664 OF 2005 inclined to grant for the reason that majority of the owners never co-operate with the Tribunal for proper trial and disposal. So, the finding is set aside and since the matter has to go back, the request for enhancement of compensation also to be considered by the Tribunal. 5. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal and all concerned are permitted to produce documentary as well as oral evidence in support of their respective contentions and the matter be decided after framing appropriate issues in accordance with law. The parties are directed to appear before the Tribunal on 08.01.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.No.1664 OF 2005