IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 MACA.No. 542 of 2008() ---------------------- OPMV.1154/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI - 18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER ------------------------- MUHAMMED SHERIL T.M., S/O.V.P.A. RAHIM, 'SHERMINAS', KALAMASSERY. ADV. SRI.ANIL S.RAJ FOR R1 SMT.K.N.RAJANI FOR R1 SMT.MANJUSHA MOHANDAS FOR R1 SMT.ANILA PETER FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/03/2009, ALONG WITH MACA NO.583 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. Nos.542 & 583 of 2008 ------------------------------------------------- Dated this the 20th day of March, 2009 JUDGMENT Basant,J. These appeals are filed by the Insurance Company and they are directed against a common award passed under which the owner of a vehicle as also the injured who was riding the vehicle claimed compensation for the loss suffered to the vehicle as also the personal injuries suffered by the rider of the vehicle. It was a two wheeler. The respondent in MACA No.542/08 is the rider of the motor-cycle and the respondent in MACA No.583/08 is the owner of the vehicle. 2. They alleged that they have suffered loss in an accident which had taken place on 5/12/99. The rider - a young person aged about 16 years, was riding a motor-cycle along the National Highway. He did not have a valid driving licence. He was not competent to hold a driving licence. He M.A.C.A. Nos.542 & 583 of 2008 -: 2 :- was riding from north towards south; whereas the vehicle driven by the 1st respondent insured by the appellant herein was proceeding in the opposite direction along the road. The road had a total width of 7 Mtrs. The only evidence afforded to the court to ascertain the cause of the accident is the oral evidence of the claimant - rider of the motor-cycle/insured who was examined as P.W.1. In his evidence he has spoken clearly that he was proceeding from north towards south along the western end of the road and the incident occurred when the vehicle insured by the appellant driven by the 1st respondent which came into opposite direction hit his motor-cycle. No contra evidence is adduced. In the course of cross-examination, no material has been brought out to suggest that the version of P.W.1 cannot be accepted. In addition to this, we have a clinching circumstance that the police, after due investigation, had come to the conclusion that the accident had taken place on account of the negligence of the part of the driver of the vehicle insured by the appellant. No contra evidence whatsoever has been adduced. 3. It will be relevant to note that though a scene mahazar M.A.C.A. Nos.542 & 583 of 2008 -: 3 :- has been marked, it is not possible to ascertain from the scene mahazar the precise spot of impact. Very surprisingly the police officer who prepared the scene mahazar appears to have omitted to note the precise distance to the spot of impact from either kerb of the tarred road. 4. We find no merit to interfere with the discretion exercised by the Tribunal to place reliance on the oral evidence of P.W.1 which is supported by the broad circumstance that the police also, in the course of investigation, had come to the conclusion that the negligence was on the part of the driver of the vehicle insured by the appellant. 5. It has come out in evidence that the injured was a boy aged 16 years and did not possess a driving licence. The learned counsel for the appellant contends that this is proof positive of the negligence on the part of the rider of the vehicle and the owner of the vehicle who had given the vehicle to such a rider to use the motor-cycle without a valid driving licence. 6. We must say that it is necessary for the system to frown upon such unauthorised use of the vehicle by persons who, on M.A.C.A. Nos.542 & 583 of 2008 -: 4 :- account of their young age, are not in law competent to hold a driving licence. But the learned counsel for the respondents placed reliance on a decision in Sudhir Kumar Rana v. Surinder Singh and Others (2008 (3) KHC 883 (SC)) in which the Supreme Court has clearly held that the mere fact that the victim does not possess a valid driving licence at the time when he was driving the vehicle and suffered the injuries is no reason to choose to come to a conclusion that there was any contributory negligence on the part of such victim. That was also a case where a person below the age of majority and hence incompetent to drive/ride a motor-cycle, was driving the vehicle at the relevant time and had suffered injuries. If there were semblance of materials to indicate that there was any amount of negligence on the part of the incompetent and young rider of the motor-cycle, we would certainly have agreed with the learned counsel for the appellant that the disapproval of the system must be shown by deduction of a proper amount from the quantum of loss suffered by the claimants. But in the total absence of any such materials, though we are dissatisfied with M.A.C.A. Nos.542 & 583 of 2008 -: 5 :- the conduct of the incompetent minor rider riding a vehicle and the owner entrusting the vehicle to him, we are satisfied that no interference is necessary in the facts of these appeals. No other contentions are raised. 7. In these circumstances, these appeals are dismissed. No costs. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/