IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MACA.No. 1230 of 2004(B) ------------------------ OPMV.820/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER/APPELLANT ---------------------------------- K.A.MATHAI, KOCHUKUDIYIL HOUSE, KADAMATTOM. BY ADV. SRI.T.K.KOSHY RESPONDENT(S): --------------- 1. SHAJI PAUL, S/O.FR.PAULOSE, ETHAPADATHU HOUSE, KUTTA, KANINADU, PUTENCRUZ VILLAGE. 2. JOSEPH, S/O.MATHAI, PATTIVELIL HOUSE, PANKODE,, IKKARANATTU NORTH VILLAGE. 3. NATIONAL INSURANCE CO.LTD., KOLENCHERRY. 4. JINA P.JOSE, S/O.JOSEPH, PATTUVELIL HOUSE, PANKODE KARA, IKKARANADU NORTH VILLAGE. ADV. SRI.K.P.PAULOSE FOR R2,4 SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.A.C.A. No. 1230 OF 2004 -------------------------------------------- Dated this the 4th day of December, 2008 JUDGMENT Ramachandran Nair,J. Heard counsel for the appellant and standing counsel appearing for the insurance company. Appeal is filed by the registered owner of a scooter against the award passed by the MACT authorising insurance company to recover the compensation awarded to the victim from the appellant who permitted driving of the scooter by a young boy without driving licence. Appellant's case is that he entrusted the scooter with the second respondent who was having driving licence and it was the second respondent who was driving the scooter at the time of the accident. However, in the collision between the scooter and another motor bike, the fourth respondent who is the son of the second respondent sustained injuries. Even though fourth respondent gave a statement to the police that his father was driving the scooter in a negligent manner, police filed FIR against fourth respondent, who, on 2 enquiry, was found to be driving the scooter. Even though before the MACT also appellant and second respondent tried to put up a case that scooter was driven by second respondent, who had a driving licence, MACT rejected the argument and concluded based on evidence and police case that fourth respondent was driving the scooter at the time of the accident. Consequently insurance company was also authorised to recover the compensation from the registered owner. 2. Counsel for the appellant has relied on decision of the Supreme Court in NATIONAL INSURANCE CO.LTD. V. SWARAN SINGH, (2004) 1 K.L.T. 781(SC), and contended that insurance company has not proved that the appellant committed any negligence in allowing the scooter to be driven by fourth respondent without any driving licence. We do not think the decision of the Supreme Court stands in the way of eligibility of the insurance company to recover the compensation because on evidence it was concluded by MACT that vehicle at the time of the accident was driven by the fourth respondent and not by his father, the second respondent. The case of the appellant and second respondent stands disproved for the very reason that second 3 respondent, who, according to the appellant, was driving the vehicle at the time of the accident, did not sustain any injury. Since second respondent did not sustain any injury it is obvious that he was not involved in the accident and the vehicle at the time of the accident would have been driven by the fourth respondent, who sustained injuries. It is also to be noted that the injuries sustained by the fourth respondent are not explained by the second respondent. Obviously the accident has happened in the way as stated by the police in their report accepted by the MACT by referring to the evidence. Appellant has not even stated as to why he gave scooter to the second respondent who appears to have had licence. Even appellant's case supports the case of the insurance company that entrustment of scooter to second respondent would have led its use by his son, who did not have licence. If there is any breach of understanding between appellant and second respondent it is for the appellant to settle it with second respondent. However, so long as insurance company establishes that scooter was allowed to be driven by registered owner by an adolescent boy without driving licence, there is clear violation of conditions of policy and 4 insurance company cannot be saddled with liability. MACT rightly allowed the insurance company to recover the compensation from the registered owner. We therefore dismiss the appeal. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 5