HOMI JHAY v. N.H. ANAS

P.N.RAVINDRAN, J.-----------------------------------------M.A.C.A.No.572 of 2011-----------------------------------------Dated this the 8th day of November, 2012JUDGMENTThe appellant is the second respondent in O.P.(MV).No.446of 2005 on the file of the Motor Accidents Claims Tribunal,Ernakulam. The first respondent is the claimant and respondents2 and 3 are respondents 1 and 3 respectively therein. In thisappeal, the appellant challenges the award dated 14.12.2009passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.446 of 2005 to the extent it permits the insurer of themotor vehicle to recover the amount of compensation paid by itfrom the appellant. Such permission was granted after entering afinding that the first respondent in the claim petition, who wasriding the motor bike belonging to the appellant herein, possessedonly a learner's licence and was not accompanied by an instructorholding a valid driving licence to drive the motor bike, therebyviolating rule 3 of the Central Motor Vehicles Rules, 1989. Thebrief facts of the case are as follows:2. The first respondent herein filed O.P.(MV).No.446 of M.A.C.A.No.572 of 2011-:2:-2005 on 3.12.2004 seeking payment of the sum of Rs.2,00,000/-as compensation for the injuries sustained by him in a motoraccident which took place at 10.30 p.m. on 18.9.2004. He allegedin the claim petition that while he was riding the motor bikebearing registration No.KL-07/AT 155 along the M.G. Road atErnakulam, his motor bike was hit from the rear by the motor bikebearing registration No.KL-07/T 8485 driven by the secondrespondent herein, owned by the appellant herein and insured bythe third respondent, as a result of which he sustained injuriesincluding fracture of both bones of the left leg. He alleged thatthe accident took place on account of the rash and negligentdriving of the motor bike bearing registration No.KL-07/T 8485 bythe second respondent herein. 3. Respondents 1 and 2 in the Motor Accidents ClaimsTribunal did not enter appearance and were set ex parte. Thethird respondent insurer entered appearance and filed a writtenstatement dated 11.11.2008 wherein in paragraph 4 it wascontended that the first respondent in the Motor Accidents ClaimsTribunal was not holding a valid driving licence and has violatedsection 3 of the Motor Vehicles Act, 1988. It was alleged that theinsured has knowingly and willfully allowed the first respondent to M.A.C.A.No.572 of 2011-:3:-ride the motor bike without a valid driving licence therebyviolating section 3 of the Motor Vehicles Act, 1988 and therefore,it is not liable to indemnify the insured. Later, the thirdrespondent filed an additional written statement dated 25.9.2009wherein it was contended that it is not liable to indemnify theinsured for the reason that the first respondent was holding only alearner's licence and had driven the motor bike without beingaccompanied by a pillion rider having a valid driving licence. Itwas contended that he has thereby violated section 3 of the MotorVehicles Act, 1988. It was also alleged that the insured (theappellant herein) knowingly and willfully allowed the firstrespondent to drive the vehicle without being accompanied by apillion rider having a valid driving licence and thereby violated thepolicy conditions.4. In the Motor Accidents Claims Tribunal no oral evidencewas adduced on either side. On the side of the claimant (the firstrespondent herein) Exts.A1 to A12 were produced and marked.On the side of the respondents a copy of the policy issued inrespect of the appellant's motor bike on 25.9.2009 was producedand marked as Ext.B1. The Motor Accidents Claims Tribunalconsidered the materials on record and held, relying on Ext.A1 M.A.C.A.No.572 of 2011-:4:-FIR, Ext.A4 scene mahazar and Ext.A5 First InformationStatement given by the claimant himself, that the drivers of boththe motor bikes were negligent. The Motor Accidents ClaimsTribunal also apportioned the negligence and held that there was20% negligence on the part of the claimant and 80% negligenceon the part of the first respondent in the Motor Accidents ClaimsTribunal. In the course of the proceedings before the MotorAccidents Claims Tribunal the third respondent insurer had filedI.A.No.8530 of 2008 for an order directing respondents 1 and 2 inthe claim petition to produce the driving licence held by the firstrespondent at the time of the accident. The said application wasfiled on 12.11.2008. On that application notice was ordered torespondents 1 and 2 in the claim petition on 15.12.2008. Thenotice issued to the appellant herein (second respondent in theMotor Accidents Claims Tribunal) was returned unclaimed andthereupon by order passed on 22.2.2009 the Motor AccidentsClaims Tribunal drew an adverse inference against him. Afterconsidering the evidence on record, the Motor Accidents ClaimsTribunal quantified the compensation payable as Rs.71,450/- andafter deducting 20% of the said amount towards contributorynegligence, held that the claimant is entitled to receive the sum of M.A.C.A.No.572 of 2011-:5:-Rs.55,787/- as compensation. The Motor Accidents ClaimsTribunal accordingly passed an award directing the thirdrespondent insurer to pay the said amount together with interestat 8% per annum from the date of filing of the application till thedate of deposit and permitted the insurer to recover the amountdeposited by it as compensation from the appellant on the groundthat the first respondent in the claim petition did not possess avalid driving licence. The appellant has, aggrieved thereby, filedthis appeal.5. I heard Sri.Thomas M.Jacob, learned counsel appearingfor the appellant and Smt.Meena John, learned counsel appearingfor the third respondent. Though the second respondent (the firstrespondent in the Motor Accidents Claims Tribunal and the personwho was driving the motor bike belonging to the appellant) hasbeen served, he has not so far entered appearance. The claimant,the first respondent in the appeal, has not been served thoughnotice was taken out to him on three occasions. The noticesissued to him in the appeal were returned with the endorsement“addressee left”. Earlier, on C.M.Appln.No.957 of 2011 filed bythe appellant to condone the delay of 380 days in filing theappeal, notice was taken out to the first respondent (the claimant) M.A.C.A.No.572 of 2011-:6:-on two occasions. On the first occasion the notice was notreturned after service and on the second occasion the notice wasreturned with the endorsement “left”. Therefore, by order passedon 10.6.2011, on an application filed by the appellant(I.A.No.1467 of 2011), notice on the application to condone thedelay in filing the appeal was served on the first respondent byaffixture. Later, after the appeal was admitted, when the noticeissued to the first respondent in the appeal (the claimant) wasreturned with the endorsement “not known” and still later with theendorsement “addressee left” the appellant filed I.A.No.2173 of2011 to serve notice on the first respondent by affixture. Whenthe said application came up for hearing on 2.11.2012, this Courtdirected the appellant to serve notice on the first respondent byspecial messenger. Notice was accordingly taken out to the firstrespondent by special messenger, but it was returned with theendorsement “addressee left”. Simultaneously this Court had alsodirected the learned counsel appearing for the appellant to serve acopy of the memorandum of appeal, complete in all aspects, onthe learned counsel who appeared for the claimant in the MotorAccidents Claims Tribunal. A copy of the appeal memorandum,complete in all aspects, was accordingly served on the learned M.A.C.A.No.572 of 2011-:7:-counsel who appeared for the claimant in the Motor AccidentsClaims Tribunal and today when the appeal was taken up forhearing, he was present. The learned counsel however, submittedthat he has no instructions to appear in the matter and that theclaimant will not have any reason to feel aggrieved if the appeal isallowed and the insurer is held liable to pay the compensation.The learned counsel also submitted that the insurer has alreadydeposited the amount of compensation and the claimant haswithdrawn it on 15.9.2010.6. Pursuant to the directions issued by this Court on6.11.2011, the records in O.P.(MV)No.446 of 2005 were calledfor. O.P.(MV)No.446 of 2005 was presented on 3.12.2004 and itwas numbered on 7.3.2005. In the claim petition the name of theowner of the motor bike bearing registration No.KL-07/T 8485was shown as Honi Jay, S/o.Faikal, Kaimathuruthy, Thuruthoor,Puthenvelikkara, Ernakulam district. In that address summonswas issued to him on 17.3.2005. The proceedings paper disclosesthat the summons issued to the appellant in the claim petition(second respondent in O.P.(MV) No.446 of 2005) with the hearingdate fixed as 29.4.2005 was returned unclaimed. The proceedingspaper does not disclose that after the notice issued to the M.A.C.A.No.572 of 2011-:8:-appellant herein in the first instance was returned unclaimed,fresh steps were taken to serve notice on him. In the proceedingspaper relating to O.P.(MV) No.446 of 2005, against the columnrelating to the date of service of the summons, there is no entryas regards the date on which summons was served on therespondents. However, an endorsement has been made to theeffect that "R1, R3 – signed, R2- unclaimed”. Thereafter the claimpetition stood posted on various dates. While so, the insured filedI.A.No.8530 of 2008 to direct respondents 1 and 2 in the claimpetition to produce the driving license of the first respondent inthe claim petition. That application was filed on 12.11.2008 andnotice was ordered on the said application on 15.12.2008 with thehearing date fixed as 15.2.2009. The records disclose that thenotice issued to the appellant herein, (the second respondent inthe claim petition) on I.A.No.8530 of 2008, was also returnedunclaimed. Thereafter fresh steps were not taken to serve noticeon the appellant herein, but the Motor Accidents Claims Tribunaldrew an adverse inference against him for not producing thedriving license issued to the first respondent.7. It is evident from the proceedings paper in O.P.(M.V.)No.446 of 2005 that summons was not served on the appellant M.A.C.A.No.572 of 2011-:9:-herein either in the claim petition or in I.A.No.8530 of 2008. TheMotor Accidents Claims Tribunal appears to have proceeded on thebasis that if the summons issued is returned unclaimed, itamounts to service of notice on the party to whom it wasaddressed. Sub-rule (5) of rule 9 of Order V of the Code of CivilProcedure which applies to proceedings before the Motor AccidentsClaims Tribunal (by virtue of rule 395 of the Kerala Motor VehiclesRules), stipulates that when an acknowledgement or any otherreceipt purporting to be signed by the defendant or his agent isreceived by the court or the postal article containing the summonsis received back by the court with an endorsement purporting tohave been made by a postal employee or any person authorisedby the courier service to the effect that the defendant or his agenthad refused to take delivery of the postal article containing thesummons or had refused to accept the summons by any othermeans specified in sub-rule (3) when tendered or transmitted tohim, the court issuing the summons shall declare that thesummons has been duly served on the defendant. In the provisoto sub-rule (5) of rule 9 it is stipulated that where the summonswas properly addressed, pre-paid and duly sent by registered postacknowledgment due, the declaration referred to in sub-rule (5) M.A.C.A.No.572 of 2011-:10:-may be made notwithstanding the fact that the acknowledgmenthaving been lost or mislaid, or for any other reason, has not beenreceived by the court within thirty days from the date of issue ofsummons. 8. Rule 9(5) of Order V of the Code of Civil Procedure doesnot stipulate that where the postal article is returned with theendorsement purporting to have been made by a postal employeeto the effect that it is unclaimed, it shall be deemed to besufficient proof of service. It is only in cases where the postalarticle is returned with the endorsement that the defendant or hisagent refused to take delivery of the postal article containing thesummons when it was tendered to him that the court issuing thesummons can declare that the summons has been duly served. Inthe instant case, such a thing has not happened. It was withoutnotice to the appellant on whom summons had not been servedthat an adverse inference was drawn and it was held that he hadpermitted the first respondent in the claim petition (the personwho was driving the motor bike bearing registration No.KL-07/T8485) without being accompanied by an instructor holding avalid driving license to drive a motor bike. As stated earlier, it wasonly in the additional written statement filed by the insurer on M.A.C.A.No.572 of 2011-:11:-26.9.2009 after an adverse inference was drawn against theappellant herein by order passed on I.A.No.8530 of 2008 that theinsurer for the first time raised the contention that the firstrespondent in the claim petition who held only a learners licensehad driven the motor bike without being accompanied by aninstructor having a valid driving license. 9. Ext.A11 driving license issued to the first respondent inthe claim petition discloses that on the date of the accident hepossessed only a learners license. Under rule 3 of the CentralMotor Vehicles Rules a person holding a learners license can drivea motor vehicle only if he or she is accompanied by an instructorholding an effective driving license to drive the motor vehicle andsuch instructor is sitting in such a position to control and stop thevehicle and there is painted, in front and the rear of the vehicle oron a plate or card affixed to the front and rear, the letter “L” inred or on a white background. It is evident from the records thatit was without notice to the appellant that O.P(M.V).No.446 of2005 was disposed of after drawing an adverse inference againsthim for not producing the driving license issued to the firstrespondent in the claim petition. A photostat copy of the drivinglicense of the first respondent in the claim petition was on record M.A.C.A.No.572 of 2011-:12:-and it was marked as Ext.A11. It was without notice to theappellant that the Motor Accidents Claims Tribunal drew anadverse inference against him. In such circumstances, I am of theopinion that the Motor Accidents Claims Tribunal erred in holdingthat there was a breach of the policy conditions and in permittingthe insurer to recover the amount of compensation after payment.Since the accident took place on 18.9.2004, more than 8 yearsback, no purpose will be served by remanding the case to theMotor Accidents Claims Tribunal for the purpose of enabling theappellant to prove that the first respondent in the claim petitionwho held only a learner's license was not driving the vehicle alone,but was accompanied by a person who held a valid license to drivea motor bike. That apart, there is no allegation in Ext.A5 FirstInformation Statement or in Ext.A3 charge sheet that the firstrespondent in the Motor Accidents Claims Tribunal has violatedrule 3 of the Central Motor Vehicles Rules. The only charge leveledagainst the first respondent was under section 338 IPC. In suchcircumstances, I am of the considered opinion that the award ofthe Motor Accidents Claims Tribunal to the extent it permits theinsurer to recover the amount of compensation paid by it from theappellant is liable to be set aside. M.A.C.A.No.572 of 2011-:13:-For the reasons stated above, I allow the appeal and setaside the award dated 14.12.2009 in O.P.(MV)No.446 of 2005 onthe file of the Additional Motor Accidents Claims Tribunal,Ernakulam to the extent it permits the third respondent insurer torecover the amount of compensation paid by it from the appellant.The parties shall bear their respective costs. The appellant will befree to withdraw the money if any deposited by him in the MotorAccidents Claims Tribunal, pursuant to the impugned award. P.N.RAVINDRAN, JUDGE.ahg/rkc P.N.RAVINDRAN, J.---------------------------M.A.C.A.No.572 of 2011----------------------------JUDGMENT8th November, 2012