Kerala High Court
New India Assurance Company Ltd vs Ramakrishnan on 26 August, 2025
M.A.C.A.No.767 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
MACA NO. 767 OF 2020
AGAINST THE AWARD DATED 30.01.2020 IN OPMV NO.1555 OF
2007 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
THRISSUR.
APPELLANT/2ND RESPONDENT:
NEW INDIA ASSURANCE COMPANY LTD
SSN COMPLEX, TEMPLE ROAD, NATTIKA POST,
TRIPRAYAR, THRISSUR DISTRICT REP. BY THE
AUTHORISED REPRESENTATIVE/SIGNATORY ASST.
MANAGER, REGIONAL OFFICE, KOCHI 682 011.
BY ADV SHRI.RAJAN P.KALIYATH
RESPONDENTS/PETITIONERS & RESPONDENT-1:
1 RAMAKRISHNAN
AGED 67 YEARS
KANAKKANTHARA HOUSE, CHERKKARA,
THALIKULAM, THRISSUR DISTRICT 680 569.
2 SAROJINI,
AGED 60 YEARS
W/O. RAMAKRISHNAN,
KANAKKANTHARA HOUSE,
CHERKKARA, THALIKULAM,
THRISSUR DISTRICT 680 569.
3 RASEESH,
AGED 31 YEARS
S/O. RAMAKRISHNAN,
KANAKKANTHARA HOUSE,
CHERKKARA, THALIKULAM,
THRISSUR DISTRICT 680 569.
M.A.C.A.No.767 of 2020
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4 LEKHA SUDHEEVAN,
ENGOOR HOUSE, P.O. NATTIKA,
THRISSUR DISTRICT 680 566.
BY ADVS. SRI.A.R.NIMOD
SRI.V.A.VINOD
SRI.M.A.AUGUSTINE
SHRI.KARTHIK RAJAGOPAL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 19/08/2025, THE COURT ON 26.08.2025 DELIVERED THE
FOLLOWING:
M.A.C.A.No.767 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.767 of 2020
----------------------------------------------------
Dated this the 26th day of August 2025
JUDGMENT
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
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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
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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
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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-
"14. The last question is whether he had a valid
driving licence. The High Court has not recorded a
clear cut finding on this point. The finding of the
Tribunal is more evasive than the one by the High
Court. Mr. Sharma did not dispute that the second
appellant had a driving licence. His grievance is that
he having failed to produce the same when called upon
to do so in the cross examination, an adverse inference
be drawn against him that he did not have a valid
licence to drive a pick-up van. The submission fails to
carry conviction with us. ................"
(Emphasis supplied)
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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,
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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-
".......The burden to prove that there was breach of the
contract of insurance was squarely placed on the
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shoulders of the insurance company. It could not be
said to have been discharged by it by a mere question
in cross- examination. The second appellant was under
no obligation to furnish evidence so as to enable the
insurance company to wriggle out its liability under the
contract of insurance. Further the R.T.A. which issues
the driving licence keeps a record of the licences issued
and renewed by it. The insurance company could have
got the evidence produced to substantiate his
allegation. Applying the test who would fail if no
evidence is led, the obvious answer the insurance
company." (Emphasis supplied)
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
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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
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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.
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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
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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 -
"63. Apart from the above, we do not intend to lay down
anything further, i.e., degree of proof which would satisfy
the aforementioned requirement inasmuch as the same
would indisputably depend upon the facts and
circumstances of each case. It will also depend upon the
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terms of contract of insurance. Each case may pose
different problem which must be resolved having to a large
number of factors governing the case including conduct of
parties as regard duty to inform, correct disclosure,
suppression, fraud on the insurer, etc. It will also depend
upon the fact as to who is the owner of the vehicle and the
circumstances in which the vehicle was being driven by a
person having no valid and effective licence. No hard and
fast rule can therefore be laid down. If in a given case there
exists sufficient material to draw an adverse inference
against either the insurer or the insured, the Tribunal may
do so. The parties alleging breach must be held to have
succeeded in establishing the breach of conditions of
contract of insurance on the part of the insurer by
discharging its burden of proof. The Tribunal, there cannot
be any doubt, must arrive at a finding on the basis of the
materials available on records."
(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
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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
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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.
Sd/-
C.S.SUDHA
JUDGE
Jms
