IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 MACA.No. 425 of 2004() --------------------------------- OPMV.425/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT : 2ND RESPONDENT ----------------------------------------------- THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, KASARAGOD NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, AJAY VIHAR, KOCHI-16. BY MR.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 3. -------------------------------------------------------------------------------- 1. AYSHA, W/O. ABOOBACKER, KARIMBILA HOUSE, BADIADKA, PERADALA POST, KASARAGOD TALUK. 2. THAJUDDIN, S/O. ABDUL RAHIMAN, BEEYATHANADKA HOUSE, PERADALA POST, KASARAGOD TALUK. 3. B. GANESH, S/O. BELLUKUNHI, PAGILA HOUSE, NEKRAJE P.O., KASARAGOD TALUK. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.425 OF 2004 ............................................. Dated this the 16th day of September, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kasaragod in OP(MV)No.425/1999. The claimant sustained injuries in a road accident and the Tribunal has awarded a compensation of Rs.26,800/- and directed the insurance company to pay the amount. It is against that decision, the insurance company has come up in appeal contending that since the driver did not have a valid driving licence, at least the Tribunal should have ordered reimbursement of the amount from the owner. The owner did not properly participate in the trial proceedings. The insurance company moved an application to direct the owner and the driver to produce the licence. Though it was served, they refused to receive the notice. The Tribunal held that just because they have not responded or refused to receive summons and even if an adverse inference is drawn, it will not be a positive indicator to prove the absence of licence especially in the background that there is no charge against the driver for driving without licence. The Tribunal also held : 2 : M.A.C.A.NO.425 OF 2004 that the insurance company should have moved before the appropriate transport authority to get the licence particulars of the driver and should have produced it so as to convince the court regarding the absence of a valid driving licence. I cannot say that the Tribunal was totally unjustified in making such observations. It has to be borne in mind that when exemption or exoneration of liability is claimed on the basis of breach of the policy conditions, the burden is on the person who claims, to prove it. So, there was no satisfactory discharge of that burden, but equally it has to be stated that the driver and owner did not participate in the trial and even refused to receive the summons. So in the fitness of things, I feel an opportunity can be given to the insurance company to satisfy the conscience of the court regarding absence of the driving licence by producing cogent materials before the Tribunal. 2. Therefore, the award under challenge is set aside so far as it relates to the inter se liability between the insurance company and the owner is concerned and the Tribunal is directed to permit all concerned to produce both : 3 : M.A.C.A.NO.425 OF 2004 documentary as well as oral evidence in support of their respective contentions and decide the matter in accordance with law. Since the owner is not properly co-operating in the trial, I direct the insurance company on appearance before the court below to take out summons to the owner once again so that he can also be heard. The insurance company is directed to appear before the Tribunal on 11.11.2009. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 4 : M.A.C.A.NO.425 OF 2004