IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 MACA.No. 182 of 2003(P) ----------------------- OPMV.811/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT/4TH RESPONDENT: --------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, THALIPARAMBA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): PETITIONER AND RESPONDENTS 1 AND 2: -------------------------------------------------- 1. ASHRAF C.H., S/O. IBRAHIM, PADNEKAD, P.O. PADNEKAD, KANHANGAD, KASARAGOD DIST. 2. KALLAYI SIRAJ, S/O. KALLAYI ABDUL RAHIMAN HAJI, MARKET ROAD, P.O. NILESWAR, HODRUG TALUK. 3. A.T. JOSEPH, S/O. FRANCIS, SNEHASUDANAM, P.O. PUNNAKUNNU, BALAL PARAPPA, HOSDRUG TALUK, KASARAGOD DISTRICT. ADV. SRI.T.K.VIPINDAS FOR R1 SRI.JAWAHAR JOSE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 182 OF 2003 = = = = = = = = = = = = = = = Dated this the 19th day of May, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV)811/98. The claimant has been awarded a compensation of Rs.23,200/- and the insurance company is liable to pay the amount. The insurance company had challenged the award on the ground that since the driver did not have a valid driving licence on the date of the accident there is breach of policy conditions and therefore the insurance company should at least get the right to recover the amount from the owner. The learned Tribunal found that no charge has been laid against the driver for driving without a licence and no document is produced to prove that there was no licence. 2. On the contra the learned counsel for the insurance company would contend that they have moved an application calling upon the driver to produce licence and as he has not responded to the same, so adverse inference has M.A.C.A. 182 OF 2003 -:2:- to be drawn and the insurance company has to be given the right to recover. Under rule 376 of the Kerala Motor Vehicles Rules the obligation is on the insurance company to establish the same. Lots of decisions point out that mere adverse inference shall not be the sole criteria to arrive at a decision. Whether a person is having licence or not can be easily proved by producing documents from the appropriate authorities. Hence I am inclined to grant an opportunity. 3. Fortunately and unusually the driver has entered appearance in this case. The counsel for the driver would submit before me that he is not sure about the availability of a licence. But I feel a direction can be given to the driver to file an affidavit before the Court whether he was having an effective valid driving licence on the date of the accident. Therefore the award of the Tribunal is set aside and the Tribunal is directed to consider the question afresh whether the insurance company is entitled to get recovery of the amount from the owner and for that purpose decide the question of validity of a driving licence. The driver is also M.A.C.A. 182 OF 2003 -:3:- directed to file an affidavit within a period of six weeks from the date of first appearance of parties. Parties are directed to appear before the Tribunal on 1.7.2010. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. M.A.C.A. 182 OF 2003 -:4:- M.N. KRISHNAN, J. = = = = = = = = = = M.A.C.A. No. 182 OF 2003 = = = = = = = = = = = J U D G M E N T 19th May, 2010.