Kerala High Court
The Oriental Insurance Co.Ltd vs Santhoshkumar on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MACA NO. 672 OF 2012
AGAINST THE AWARD IN OP(MV) 211/2008 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL,KOTTAYAM
APPELLANT/3RD RESPONDENT IN THE OP:
THE ORIENTAL INSURANCE CO.LTD.,KOTTAYAM,
REPRESENTED BY THE AUTHORIZED SIGNATORY,
THE ORIENTAL INSURANCE CO.LTD,
REGIONAL OFFICE,METRO PALACE,
ERNAKULAM NORTH,KOCHI-18.
BY ADV SRI.A.R.GEORGE
RESPONDENTS/RESPONDENTS 1 & 2 IN THE OP:
1 SANTHOSHKUMAR
S/O.RAMACHANDRAN NAIR,KAVUMKAL HOUSE,
VAZHAKKALA,ERUMELI.P.O,KOTTAYAM - 686 509.
2 MUHAMMED ISMAIL, S/O.SAIDU MUHAMMED,
MALIKA VEEDU,ERUMELI.P.O,KOTTAYAM - 686 509.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A No.672 of 2012
2
'CR'
JUDGMENT
The short question that falls for
consideration in this appeal at the instance
of the Insurance Company is as to whether
narration regarding filing of a separate
charge against the owner and driver of the
offending vehicle alleging commission of
offences under Section 3(1) read with Sections
180 and 181 of the Motor Vehicles Act in the
separate police charge against the driver,
alleging commission of IPC offences, is
sufficient evidence to hold that the driver
did not possess a valid Driving Licence at the
time of accident?
2. Briefly stated, this case emanated,
when the original petitioners approached the
Tribunal and claimed compensation consequent
M.A.C.A No.672 of 2012
to an accident occurred on 22.06.2006. In this
case, respondent nos.1 and 2 filed written
statement disputing the quantum of
compensation and also disputing the negligence
alleged against the driver. But in the written
statement, it is specifically contended that
the 1st respondent was possessing a valid
Driving Licence at the time of accident.
3. The 3rd respondent, insurer filed a
statement admitting the policy and raising
specific challenge to the effect that the
driver did not possess a Driving Licence at
the time of accident.
4. While passing the award, the learned
Tribunal held that though the learned counsel
for the Insurance Company submitted that the
police had charge-sheeted the 1st respondent
for the offence punishable under Section 3(1)
of the Motor Vehicles Act, Ext.A2 charge sheet
M.A.C.A No.672 of 2012
produced before the Tribunal did not contain
such portion. In view of the matter, pay and
recovery right claimed by the Insurance
Company was denied.
5. The learned counsel for the Insurance
Company while pressing for recovery right,
read out a portion in Ext.A2 police charge-
sheet stating that since the driver did not
possess a valid Driving Licence at the time of
accident a separate charge under Section 3(1)
read with Sections 180 and 181 of the Motor
Vehicles Act was filed. Reading Ext.A2 charge
sheet, no allegation as to commission of
offences under Section 3(1) read with Sections
180 and 181 covered to be gathered as observed
by the Tribunal. But Ext.A2 recites that a
separate charge under Section 3(1) read with
Sections 180 and 181 had been filed against
the driver and the owner. The company did not
M.A.C.A No.672 of 2012
produce the said separate charge either before
the Tribunal or before this Court.
6. In this case, the owner and driver
filed written statement and submitted before
the Tribunal that the driver possessed a valid
Driving Licence at the time of accident. But
no valid Driving Licence produced before the
Tribunal to substantiate this contention.
In this context it is pertinent to mention
that, in the present case Company raised
specific contention to the effect that the
driver did possess a valid Driving Licence
from 06.02.1996 to 05.02.1999 to drive an
autorickshaw and the said licence was not
renewed thereafter, though 30 days time alone
is permissible to renew the licence.
Admittedly, the accident was on 22.06.2006.
This contention requires appreciation in view
of the narration in Ext.A2 charge positing
M.A.C.A No.672 of 2012
filing of a separate charge under Section 3(1)
read with Sections 180 and 181 of MV Act, in
the absence of any other contra materials to
hold otherwise. Since Ext.A2 espouses filing
of a separate charge alleging absence of
driving licence to the driver at the time of
accident the said recitals can be given
reliance to find that driver did not possess a
valid driving licence on the date of accident.
On the specific question as to mentioning of
filing of a separate charge under Section 3(1)
r/w S.180 and 181 of M.V Act in the separate
police charge against the driver, there is no
reason to doubt such recitals to hold that the
driver did not possess a valid and effective
driving licence at the time of accident,
though production of the separate charge under
the relevant penal provision to be held as
more authoritative.
M.A.C.A No.672 of 2012
7. Be it so, the finding of the Tribunal
to the effect that no evidence to find absence
of Driving Licence to the driver of the
offending vehicle at the time of accident, is
erroneous and is liable to be interfered and
set aside.
8. Consequently, the appeal at the
instance of the Insurance Company stands
allowed and it is held that the 3rd respondent
- Insurance Company can recover the amount
covered by the award along with the accrued
interest thereof after depositing the same in
the name of the original petitioners as
directed by the Tribunal.
9. Now a vital issue requires
consideration. While dealing with O.P.(M.V)
matters, normally recovery right would be
granted in favour of the Insurance Company
upholding the contention raised by the Company
M.A.C.A No.672 of 2012
attributing violation of policy conditions;
viz., absence of valid and effective Driving
Licence, Fitness Certificate, Badge, Permit
etc., based on police charge alleging
commission of offences for the same and
sometimes by taking adverse inference against
the owner or the driver after they failed to
produce Driving Licence, Fitness Certificate,
Badge, Permit etc., even after specific
directions by the Tribunal on the application
of the insurer. However, after passing awards
granting recovery right, the driver and the
owner as the case may be, who did not care to
produce Driving Licence, Fitness Certificate,
Badge, Permit etc., before the Tribunal would
notice that grant of recovery right finding
violation of policy condition by the Tribunal
for non production of these documents would be
erroneous, as they are having possession of
M.A.C.A No.672 of 2012
the said document/documents. This situation
leads to the the remedy invariably by way of
appeal before this Court, since the limited
power of review available before the Tribunal
found to be not functional to address the
grievances. It is for this reason many appeals
of such nature are pending before this Court.
I am of the view that if the Tribunals while
passing right of recovery for the absence of
Driving Licence, Fitness Certificate, Badge,
Permit etc., makes an order to the effect that
in case the driver or the owner produce
Driving Licence, Fitness Certificate, Badge,
Permit etc., during recovery proceedings
Tribunal can consider the sanctity of the
documents with due notice and hearing to the
counsel for the Insurance Company and reverse
the order of recovery by the Tribunal itself.
10. That apart, such a speaking order can
M.A.C.A No.672 of 2012
be passed in appeals by this Court also to
avoid filing of subsequent proceedings before
this Court to amplify the number of
proceedings before this Court.
11. Accordingly, it is ordered that the
right of recovery granted herein is liable to
be revisited by the Tribunal while proceeding
with execution proceedings for recovery of the
amount, if the driver or the owner of the
offending vehicle produce effective Driving
Licence to the satisfaction of the Tribunal
concerned after notice and providing
opportunity of hearing to the counsel for the
Insurance Company. On satisfying possession
of valid and effective driving licence by the
driver of the offending vehicle, the Tribunal
can record the said fact and ignore the
recovery hereby granted and close the
execution proceedings without proceeding
M.A.C.A No.672 of 2012
further to recover the amount in view of this
judgment.
12. Registry of this Court is directed to
forward copies of this judgment to all Motor
Accident Claims Tribunals and additional Motor
Accidents Claims Tribunals of the State for
compliance of this judgment with reference to
paragraphs 9 and 11, herein after.
This appeal stands allowed as above.
Sd/-
A.BADHARUDEEN, JUDGE.
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