This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the second respondent/insurer in O.P.(MV) No.1555/2007 on the file of the Motor Accidents Claims Tribunal, Thrissur (the Tribunal), aggrieved by the Award dated 30/01/2020. The respondents herein are the claim petitioners and the first respondent respectively in the petition. In this appeal, the parties and the documents will be referred to as described in the original petition.

2. The claim petitioners are the parents and brother of deceased Raneesh. According to the claim petitioners, on 19/02/2006 at 05:30 p.m., while the deceased was riding motorcycle bearing registration no.KL-8-Y-5439 through Cherkkara - Vatanappally road and when he reached the place by M.A.C.A.No.767 of 2020 4 2025:KER:64385 name, Kalany Palam, the motorcycle hit an electric post as a result of which he sustained grievous injuries, to which he succumbed.

3. The first respondent-owner did not file written statement.

4. The second respondent-insurer filed written statement admitting the policy but denying the liability. It was contended that the deceased was not having valid driving license at the time of the accident. The first respondent has violated the policy condition. The averments in the petition regarding injuries, hospitalisation, age and income of the deceased were disputed. The compensation claimed under various heads was contended to be exorbitant.

5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A5 were marked on the side of the claim petitioners. Exts.B1 to B6 were marked on the side of the second respondent.

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6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found that the respondents 1 and 2 are severally liable to pay an amount of ₹2,28,900/- together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. The second respondent has been given the liberty to recover the amount from the first respondent/owner. Aggrieved by the Award, the claim petitioners have come up in appeal.

7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.

8. Heard both sides.

9. It was submitted by the learned counsel for the second respondent-insurer that the Tribunal committed a gross error in awarding compensation in an application under Section 163A of the Act as the accident was caused solely due to the rashness and negligence of the deceased himself, who was riding M.A.C.A.No.767 of 2020 6 2025:KER:64385 the motorcycle owned by the first respondent. In support he relies on the dictums in Ningamma v. United India Insurance Co.Ltd. , ( 2009) 13 SCC 710, Ramkhiladi v. United India Insurance Company , (2020) 2 SCC 550 as well as Sasikala v. Aji Kumar, 2019 (4) KLT 117.

10. Admittedly, the deceased was riding a motorcycle owned by the first respondent. Nobody has a case that the deceased was an employee or worker of the first respondent/owner. That being the position, the deceased stepped into the shoes of the first respondent/owner and in such circumstances, as per the aforesaid dictums, the claim petitioners are not entitled to compensation under Section 163A of the Act.

11. It was further submitted that the amount under the personal accident cover (PAC) can also not be awarded as the terms of the contract or the policy condition was violated as the deceased had no valid driving license at the time of the incident. Therefore, the insurer is liable to be completely exonerated. Per M.A.C.A.No.767 of 2020 7 2025:KER:64385 contra, it was submitted by the learned counsel for the claim petitioners relying on the dictum of the Apex Court in Narchinva V. Kamat v. Alfredo Antonio Deo Martins, AIR 1985 SC 1281 that the burden was on the second respondent/insurer to prove that there was violation of the policy condition. However, the said burden has not been discharged by the second respondent/insurer and hence the latter cannot be exonerated of the liability.

12. Paragraph no.14 of the dictum Narchinva V. Kamat (Supra) reads thus-

(Emphasis supplied) M.A.C.A.No.767 of 2020 8 2025:KER:64385

13. Unlike in Narchinva V. Kamat (Supra) where there was no denial of the existence of driving license, in the case on hand the same is disputed by the insurer. There is a specific contention in the written statement that the deceased was rash and negligent and that he did not have a valid driving license at the time of the incident. The second respondent/insurer filed two applications before the Tribunal, namely, I.A.No.2022/2013 for directing the first respondent/owner of the motorcycle to produce the driving license of the deceased as well as I.A.No.1920/2018 for directing claim petitioners 1 & 2 to produce the license of their son, the deceased. The first respondent/owner filed an affidavit stating that she is under treatment for cancer ; that the deceased, her son's friend had taken the vehicle and ridden it without her permission and that because of her medical condition she is unable to produce the license of the deceased. I.A.No.1920/2018 filed for directing the claim petitioners 1 & 2, admittedly the parents of the deceased, was allowed by the Tribunal. However, M.A.C.A.No.767 of 2020 9 2025:KER:64385 the claim petitioners 1 and 2 did not comply with the order. Now the question is, whether the insurer filing applications for directing the owner or driver to produce the driving license is sufficient discharge of the burden of proving violation of policy conditions?

14. Here, I again refer to the dictum in Narchinva V. Kamat (Supra) in which case the Tribunal ordered in favour of the insurer observing that at the time of the accident the vehicle that was being driven by the appellant therein, one of the partners of the Firm, the owner of the vehicle, had not produced his driving license. It was concluded that there was no valid driving license at the relevant time and that in the absence of a valid driving license, there was a breach of the contract of insurance and hence the insurer was absolved from the liability under the policy of insurance. The relevant portion of paragraph 14 reads thus-

15. In addition to the dictum in Narchinva V. Kamat (Supra), the learned counsel for the claim petitioners rely on the dictum of the Apex Court in Rukmani v. New India Assurance Company, CDJ 1997 SC 1082 as well as the judgments of other High Courts, namely, G.Nagendra Devi v. Y.Mosses, CDJ 2001 MHC 742 ; National Insurance Company Ltd. v. Nirabjit Kaur, CDJ 2008 DHC 1116 ; an unreported decision of the High Court of Rajasthan dated 03/10/2012 in Misc.Appeal.No.566/2006 ( Mangu v. Surya Prakash ) ; Bajaj M.A.C.A.No.767 of 2020 11 2025:KER:64385 Allianz General Insurance Company Limited, Pune v. Poomani, CDJ 2024 MHC 2351 ; an unreported decision of the High Court of Karnataka dated 23/09/2024 in Misc.First Appeal No.5750 of 2016 ( The Branch Manager, National Insurance Co. Ltd., v. Ramakrishna M. ).

16. The High Courts in the decisions cited have relied on the dictum in Narchinva V.Kamat (Supra). In Rukmani (Supra), the insurer was absolved from liability in respect of the claim for compensation by the High Court on the ground that the driver had no valid license. The High Court noted that the burden of the insurer under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939, had been discharged and the breach proved. The Apex Court noticed that the only piece of evidence which the insurer produced in support of the plea was the testimony of the Inspector of Police, who had investigated the accident. The Officer, when examined as PW1 stated in his examination-in-chief that his enquiries revealed that the first M.A.C.A.No.767 of 2020 12 2025:KER:64385 respondent/driver had not produced the driving license and that the first respondent even after his demand had not submitted the license as he was not having one. In the cross examination, he deposed that it was the Inspector of Motor Vehicles who was required to check whether there was license and that he had not informed the Inspector of Motor Vehicles that the first respondent was not having a license as he thought it was unnecessary. This evidence was held to be insufficient to discharge the burden cast on the insurer as they had not even taken steps to summon the driver of the vehicle or summon records from the Road Transport Authority. In the said circumstances it was held that the insurer had not discharged the burden upon it under Section 96(2)(b)(ii) of the 1939 Act and hence the judgment of the High Court was set aside and the order of the Tribunal was restored.

17. The learned counsel for the second respondent- insurer relies on the dictums in National Insurance Company Ltd. V. Swaran Singh , 2004(1) KLT 781 (SC) and Mumthas v. M.A.C.A.No.767 of 2020 13

2025:KER:64385 Rafeek, 2022 (5) KLT SN 30 (C.No.28) in support of his argument that the burden has been discharged by the insurer. In Swaran Singh (Supra), the Apex Court examined the interpretation of Section 149(2)(a)(ii) vis-a-vis the proviso appended to sub- section 4 and 5 of the Act. The defences raised by the insurer in the claim petitions in terms of Section 149(2)(a)

(ii) of the Act were : (a) driving licence produced by the driver or owner of the vehicle was a fake one; (b) driver did not have any licence whatsoever; (c) licence, although was granted to the driver concerned but on expiry thereof, the same had not been renewed;

(d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and (e) the vehicle in question was driven by a person having a learner's licence. It was held that where the insurer relying upon the violation of provisions of law by the assured, takes an exception to pay the assured or a third party, they must prove a willful violation of the law by the assured. In M.A.C.A.No.767 of 2020 14 2025:KER:64385 some cases, violation of criminal law, particularly, violation of the provisions of the Act may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or so recklessly as to denote that the assured did not care what the consequences of his act might be. After referring to several earlier decisions including the dictums in Narchinva V.Kamat and Rukmani (Supra), it was held that the proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. It was further held thus -

(Emphasis supplied)

18. As rightly pointed out by the learned counsel for the second respondent-insurer, in all the judgments relied on by the learned counsel for the claim petitioners, the issue was regarding the liability of the insured/insurer in respect of third party claims and not in case of personal accident cover. As held by the Apex Court, the degree of proof required would depend on M.A.C.A.No.767 of 2020 16 2025:KER:64385 the facts and circumstances of each case. Here, as noticed earlier, neither the claim petitioners nor the first respondent-owner have a case that the deceased had a driving license at the relevant time. As pointed out by the learned counsel for the second respondent- insurer, it is practically impossible/impractical for the insurer to summon relevant documents to prove that the deceased driver did not have driving license without the insurer getting either the license number or the details of the authority which issued the driving license. This fact would be in the exclusive knowledge of the owner or driver. The second respondent-insurer has clearly averred in the written statement that there was no driving license for the deceased. The rider of the vehicle died in the accident. The claim petitioners are his parents and the first respondent is the owner of the vehicle. It is not possible for the insurer to summon documents from the RTOs all over the State to prove a negative fact that the driver had no licence. The position would certainly have been different, had some details of the licence like its M.A.C.A.No.767 of 2020 17 2025:KER:64385 number or such other detail was available. Both the claim petitioners as well as the first respondent were given an opportunity to produce the driving license to disprove the contention of the insurer. However, the same has not been done and therefore, an adverse inference needs to be drawn that it was because the deceased did not have a license, the same was not produced before the court. That being the position, I find that the second respondent-insurer is entitled to succeed in the appeal.

In the result, the appeal is allowed and the impugned judgment is set aside.

Interlocutory applications, if any pending, shall stand closed.

C.S.SUDHA JUDGE Jms