IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 MACA.No. 2020 of 2005() ------------------------------ OPMV.32/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT(S)/2ND RESPONDENT IN OP.MV.32/1991 --------------------------------------------------------------- UDAYABHANU, AGED 51 S/O.LATE GOPALAN, KELOTHU PUTHENPURAYIL, NOW RESIDING AT KAIPPILLIL, K.K.PADMANABHAN ROAD, KOCHI-18. BY ADVS. SRI.GOPAKUMAR G. (ALUVA) SRISHIJU VARGHEESE SRI.DILEEP VARGHESE SMT.A.K.RANI SRI.JOJY SUNIL RESPONDENT(S)/PETITIONEER/RESPONDENTS 1 & 3 IN OP(MV)32/1995 -------------------------------------------------------------- 1. JANAKI, W/O.NARAYANAN, CHUDUKKATTU PARAMBIL, NORTH PARUR(DIED). 2. VINOD, S/O.SANKARANKUTTY NAIR, ANANDA MANDIRAM, PERUMPILLY, CHERPU, TRICHUR DISTRICT. 3. NATIONAL INSURANCE CO LTD., BRANCH OFFICER, MAIN ROAD, IRINGALAKUDA-680 121. R3 BY ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON I.A.3531/2005 & I.A. 762/2006 IN MACA.No 2020/2005 DISMISSED 11/11/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2020 OF 2005 = = = = = = = = = = = = = = = Dated this the 11th day of November, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, North Paravur in O.P. (MV)32/91. The claimant sustained injuries in a road accident and she has been awarded a compensation. Since the first respondent rider did not have a valid driving licence the trial court ordered reimbursement of the amount from the owner of the vehicle. It is against that decision the owner has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. The learned young counsel would canvass for the position that the insurance company cannot get exonerated from the liability. According to the appellant he is the owner of M.A.C.A. 2020 OF 2005 -:2:- the scooter involved in the accident. But he would contend he had authorised only one of his peons namely Subrahmonian to take the vehicle. But it appears that Subrahmonian had permitted the first respondent in the claim petition to ride the vehicle and that has resulted in the accident. 3. The unfortunate part is that the insurance company contended that R1 did not have a valid driving licence and therefore there is breach of policy conditions which entitles for reimbursement at least. Attempts after attempts were made to get the driver. Attempts were made even by way of publication to get the licence but everything ended without success and therefore nothing is available to show that the rider did have a valid driving licence at the time of the accident. I am conscious of the fact that the burden is on the insurance company to a great extend to prove the absence of M.A.C.A. 2020 OF 2005 -:3:- driving licence. It has to be remembered that lakhs and lakhs of vehicles are registered and licences are issued and unless there is some point or materials, insurance company shall not be able to get the document. It has to be remembered the appellant would contend that he had authorised Subrahmonian to take the vehicle but it was ridden by the first respondent. Subrahmonian had not been examined by the owner at all in this case. Nothing available before the Court to show that through this Subrahmonian the first respondent has attempted to get the licence, if any. The learned counsel had cited a decision of the Hon'ble Supreme Court wherein it is stated that if the owner entrusts a vehicle to a person, after due enquiry, having a driving licence and that person allows somebody else without licence to drive the vehicle then the insurance company cannot get exonerated from the liability. Even if the most liberal M.A.C.A. 2020 OF 2005 -:4:- principle is to be applied there should be material to show that the person who had been authorised to take the vehicle did have a driving licence. Nothing is available before the Tribunal or before the Court to show that Subrahmonian did have a valid driving licence. If Subrahmonian did not have a valid driving licence then it has to be presumed that the owner would have permitted another person to drive the vehicle. At least there must be evidence to show that Subrahmonian knowns driving. So the non production of Subrahmonian and absence of evidence would reveal that the owner has not discharged his burden that he had authorised a person having a driving licence to drive the vehicle. Therefore it has to be held as stated by me earlier that in spite of all the attempts insurance company could not get the particulars and the owner who is the insurer did not move his little finger to get M.A.C.A. 2020 OF 2005 -:5:- the driving licence particulars and therefore the decision of the Tribunal that R1 did not have a valid driving licence appears to be acceptable and that it is a breach of policy condition committed by the owner which entitles the insurance company to get reimbursement of the amount deposited. Therefore the appeal does not merit consideration. But I feel some leniency has to be shown with respect to the amount which is to be repaid by the owner to the insurance company. 4. A perusal of the application filed by the insurance company would reveal that the insurance company had deposited an amount of Rs.49,176/- as on 8.8.79. The original amount awarded is Rs.22,900/-. The rate of interest awarded is 12%. So the insurance company shall be entitled to recover the amount of Rs.49,176 plus 6% interest from 9.8.97 till realisation on the amount of Rs.22,900/- from the owner. M.A.C.A. 2020 OF 2005 -:6:- Considering the entire facts and circumstances of the case I direct the insurance company not to take coercive proceedings for a period of three months and if the amount is not paid within three months, the award shall be executed for the realisation of the amount. The M.A.C.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-