Kerala High Court
The Oriental Insurance Co.Ltd vs A.Dharmalingam on 27 May, 2025
2025:KER:37119
reIN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 27TH DAY OF MAY 2025 / 6TH JYAISHTA, 1947
MACA NO. 2518 OF 2012
AGAINST THE AWARD DATED 31.03.2010 IN OPMV NO.672 OF
2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
APPELLANT/3RD RESPONDENT
THE ORIENTAL INSURANCE CO.LTD
CALICUT REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.
BY ADV SRI.GEORGE CHERIAN (THIRUVALLA)
SENIOR STANDING COUNSEL
RESPONDENTS/RESPONDENTS:
1 A.DHARMALINGAM
S/O. ARUMUGHA GOUNDER KARADIKUNNUKADU,
M. PUTHOOR, GOVINDAPURAM, CHITTUR TALUK,
MUTHALMADA P.O., PALAKKAD DISTRICT - 678507
2 VIJAYAN
S/O. SANKANTHA, OODATTUPARAMBIL HOUSE,
CHEMMANNUR.P.O., KUNNAMKULAM, THRISSUR DISTRICT
PIN-680517.
BY ADV RAJESH SIVARAMANKUTTY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.05.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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MACA NO. 2518 OF 2012
2
JUDGMENT
This appeal has been filed by the 3rd respondent - insurer
in OP(MV) No.672 of 2001 on the file of the Motor Accidents
Claims Tribunal, Palakkad, challenging the liability and seeking
pay and recovery from the owner and driver of the vehicle
involved in the accident. The respondents herein are
respondents 1 and 2 before the Tribunal.
2. According to the claimants, on 17.01.2001 at about
9.30 a.m., while the deceased was riding his motorcycle
through Palakkad - Kinassery public road, a tempo van bearing
registration No.KL-10F/7597 driven by the second respondent
in a rash and negligent manner hit against the motorcycle
ridden by the deceased and as a result, he sustained serious
injuries and succumbed to the injuries. The claimants, who are
the legal heirs, approached the Tribunal claiming a total
amount of ₹3,51,500-, as compensation.
3. Before the Tribunal, the first, second and third
respondents were the owner, driver and insurer of the
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offending vehicle respectively. The first respondent filed a
written statement contending that the second respondent was
not authorised to drive the vehicle at the time of accident. They
further contended that the deceased had lost his control while
riding the motorcycle, and thus the accident occurred. The
second respondent filed a written statement contending that he
was not an employee of the first respondent and a person
named Ratnaswamy was the driver of the van. The second
respondent had travelled along with Ratnaswamy in the said
vehicle at the time of accident. He further contended that the
deceased had lost control while riding the motorcycle and hit
the rear of the tempo van. Third respondent filed a written
statement, admitting the insurance policy, but disputing the
liability and quantum of compensation claimed. They contended
that the tempo van did not have a fitness certificate to ply on
the road and also the second respondent driver of the tempo
van was not holding a driving licence at the time of accident.
Since there was violation of policy conditions, the th2937ird
respondent is not liable to indemnify the first respondent.
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Exts.A1 to A8 documents were marked on the side of the
appellant and Exts.B1 and B2 were marked on the side of the
respondents. PW1 was examined on the side of the appellant.
Ext.A7, a copy of the judgment in C.C.No.373/2001 on the file
of the Chief Judicial Magistrate Court, Palakkad shows that the
accident occurred due to the rash and negligent driving of the
tempo van by the second respondent. The appellate court
confirmed the conviction of the second respondent as per
Ext.A8 judgment. However no right of recovery was granted to
the insurer. The Tribunal, after analysing the pleadings and
materials on record, awarded a sum of ₹2,62,750/- as
compensation under different heads with interest @ 7.5% per
annum from the date of petition till realization with
proportionate costs. Disputing the liability to indemnify the
insured, the 3rd respondent insurer has come up in appeal.
4. Heard the learned senior Standing Counsel for the
appellant/3rd respondent and the learned counsel for the first
respondent.
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5. The learned senior Standing Counsel appearing for the
appellant submitted that at the time of accident, the driver was
not holding any valid driving licence. Though in the written
statement filed by the insurance company, there was a specific
contention that the second respondent was not holding a valid
driving licence to drive a tempo van, the said contention was
not considered by the Tribunal while passing the award.
6. On a perusal of the award as well as the documents
produced, it is seen that though a contention was raised by the
insurance company that the driver of the tempo van did not
have a valid driving licence, the respondents did not care to
produce the driving licence of the driver of the tempo van. The
learned counsel for the respondents submitted that though
there was no valid driving licence at the time of accident, two
days after the accident, the licence was renewed. However, the
respondents have failed to produce the driving licence even
before this Court.
7. In [2021 (4) KLJ 948] Santhosh v. Branch
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Manager, New India Insurance Company & Ors, this Court
has found that, pay and recovery can be ordered against the
insurance company, if the driving licence is not renewed within
30 days of the accident. In the present case, the respondents
have failed to prove that the driver of the tempo van had a valid
driving licence at the time of accident. Following the judgment
in Santhosh (supra), it is made clear that on payment of the
amount awarded, the insurance company will be at liberty to
recover the same from R1 and R2 - the owner and driver of the
tempo van.
Accordingly, the appeal is allowed.
However, it is made clear that, if the insurance company
is proceeding against R1 and R2 before the Tribunal by filing an
execution petition, the respondents R1 and R2 will be at liberty
to produce before the Tribunal the driving licence, valid at the
time of accident. The Tribunal shall look into the genuineness of
the documents if any produced by respondents 1 and 2 and if it
is found that the driver was having a valid driving licence to
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drive the tempo van at the time of accident, then R1 and R2
shall be exonerated from the liability .
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
RK
