Kerala High Court
Vidyasagar vs The United India Insurance Company ... on 25 September, 2024
M.A.C.A.No.8 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
MACA NO. 8 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 09.12.2014 IN OPMV
NO.545 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANTS:
1 VIDYASAGAR
AGED 42 YEARS
S/O. L. KUTTAPPAN, CHARUPARAMBAN, P.O
VETTILAPPARA, TRICHUR DISTRICT
2 SAJEEV,
AGED 43 YEARS
S/O. SINKARAN, THEVARPADATH HOUSE, THEVRPADAM DESOM,
MATTATHUR VILLAGE, TRICHUR DISTRICT.
BY ADVS.
GEORGE SEBASTIAN
SRI.ARUN LUCKOSE ABRAHAM
RESPONDENT:
THE UNITED INDIA INSURANCE COMPANY LIMITED
SOUTH CHALAKUDY, REPRESENTED BY ITS MANAGER, PIN 680
307
BY ADV SRI.PMM.NAJEEB KHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The owner and the driver are the appellants. On
18.03.2010 at 5.15 p.m., when the claimant was driving a
motorcycle bearing Registration No.KL-08/K-155 through
Irinjalakuda - Kodungallur Public Road and when reached
Narayanamangalam near Millukavu road, a car bearing
Registration No.KL-05/J-9403 driven by the 2 nd
respondent / 2nd appellant in reverse gear, hit against the
motorcycle and the claimant sustained injuries. No oral
evidence was adduced on the side of the parties. Exts.A1
to A7 were marked on the consent of the parties and
Ext.A8 was the disability certificate. However, the
appellants did not contest the claim before the tribunal.
I.A.No.198 of 2014 was filed for a direction to the
appellants to produce the driving licence, but they did not
produce any driving licence and the tribunal drew
adverse inference and thus proceeded to grant
compensation to the claimant and thereby, also ordered
that the Insurance Company can recover the amounts
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from the owner and driver. This was primarily on the
ground that no valid driving licence was available with
the 2nd appellant at the time of accident.
2. I have heard Sri.George Sebastian, the learned
counsel appearing for the appellants and Sri.P.M.M.
Najeeb Khan, the learned counsel appearing for the
Insurance Company.
3. The learned counsel appearing for the
appellants, Sri.George Sebastian, pointed out that no
doubt the appellants did not contest the matter before the
tribunal. However, that was not due to any willful
negligence or latches. As per the legal advice received by
them at the time when the claim was being contested
before the tribunal, they were advised not to appear and
contest the matter since the documents produced were
absolutely sufficient. It is also pointed out that the
finding of the tribunal that there was no valid driving
licence in favour of the 2nd appellant was not correct. The
copy of the driving licence has now been produced before
this Court in an application under Order 41 Rule 27 of the
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Code of Civil Procedure. The learned counsel submitted
that this Court may take note of the particulars of the
driving licence and interfere with the award permitting
the Insurance Company to pay and recover the amounts
from the owner and the driver.
4. On the other hand, the learned counsel for the
Insurance Company pointed out that the documents
produced before this Court are not original and therefore
the Insurance Company is not in a position to controvert
the contents of the same. The tribunal had rightly
permitted the Insurance Company to pay and recover the
amount of compensation so awarded because an adverse
inference was drawn by the tribunal in the absence of
any materials produced before it to evidence that the
appellants had not violated the policy conditions.
5. I have considered the rival submissions raised
across the Bar.
6. The only point which requires to be considered
by this Court is as to whether the 2 nd appellant had a
valid driving licence at the point of time. Going by the
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principles laid down by the Larger Bench of this Court in
Oriental Insurance Company Ltd. v. Poulose [(2015)
1 KLT 682 (L.B)] and of the Supreme Court in
Parminder Singh v. New India Assurance Company
Ltd. [(2019) 3 KLT Online 3133(SC)], if the driver did
not have valid driving licence at the time of the accident,
certainly it constitutes a fundamental breach of the policy
conditions, thereby entitling the Insurance Company to
recover the amounts so awarded under the Motor
Accidents Claim and recover the same from the owner.
In the present case, the accident took place on
18.03.2010. The vehicle which was driven by the 2 nd
appellant was admittedly a light motor vehicle and the
driving licence No.45/2200/2000 dated 05.02.2019
produced as Annexure-A along with the appeal
memorandum shows that the 2nd appellant was licenced
to drive the vehicle through out the India with the
following description.
"He is licensed to drive throughout India, vehicle of
the following description:-
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Class of Vehicle With effect from Testing
Authority
M/C with gr 09/05/2000 ALA, IJK
3whlr 09/05/2000 ALA, IJK
LMV 09/05/2000 ALA, IJK
HPMV 25/09/2006 ALA, IJK
HGMV 25/09/2006 ALA, IJK"
7. More particularly, the category of light motor
vehicle is also included in the driving licence with effect
from 09.05.2000. The validity of the said driving licence
was available from 09.05.2000 to 08.05.2020. It has also
come on record that the driving licence was renewed on
13.11.2006. Therefore, admittedly, on the date of the
accident, 18.03.2010, the 2nd appellant had possessed a
valid driving licence.
8. It is true that these documents were not
produced before the Tribunal and therefore the Tribunal
cannot be blamed for drawing adverse inference against
the appellants. However, when the documents are
produced before this Court at appellate stage, this Court
cannot shut its eyes over the documents which are in the
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public domain and for that purpose, this Court does not
deem fit to remand the matter back to the tribunal for a
reconsideration of the issue, especially since this Court in
exercise of its appellate powers is not precluded from
looking into the documents and deciding the case
accordingly.
9. As aforesaid, when the driving licence produced
before this Court shows that at the time of the accident,
the 2nd appellant was having a valid driving licence, there
can be no justification, to sustain the order impugned in
this appeal permitting the Insurance Company to pay the
amount and recover it from the owner and the driver.
Accordingly, the appellants are entitled to succeed.
10. As a result of the discussions, the impugned
award permitting the Insurance Company to pay and
recover the amount from the appellants is liable to be
interfered with. Accordingly, appeal is allowed, the
direction contained in award dated 09.12.2014, in
OP(MV) No.545 of 2010 on the file of Motor Accidents
Claims Tribunal, Irinjalakuda to the extent of permitting
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the Insurance Company to pay the amount and recover
from the appellants is thus set aside. No order as to costs.
The amounts so deposited by the appellants for
the purpose of filing the above appeal shall be refunded
on production of a copy of the judgment before the Motor
Accidents Claims Tribunal.
Sd/-
EASWARAN S.
JUDGE
ASH
