HERBERT v. JOHNKUTTY

PIUS C.KURIAKOSE &A.V.RAMAKRISHNA PILLAI, JJ.===================== M.A.C.A. NO. 2132 of 2007===================== Dated this the 9th day of March 2012 JUDGMENTRamakrishna Pillai.JThe claimant has come up in appeal, challenging the direction of the Tribunal to recover the award amount from the registered owner of the vehicle exonerating the Insurance company as it was contended by the Insurancecompany that the driver of the offending vehicle involved in the accident was not having a valid driving licence at the time of the accident.3. Allegedly while the appellant was riding on the pillion of a motor cycle, he was hit down by another motorcycle which was coming from the opposite direction. Thelearned Tribunal fixed the primary liability on the driver of MACA 2132/20072the motor cycle which was coming from the opposite direction. The owner –cum-driver of the offending vehicle remained ex parte through out the proceedings.

Therespondent-Insurance company took a contention that theowner-cum-driver was not having a valid driving licence. They have also filed a petition under Section 170 of the Motor Vehicles Act which was allowed . Another petition,I.A. No.1677/2005 was also filed by the Insurance company for a direction to the first respondent to produce the driving licence. That I.A.also was allowed. However, the first respondent did not respond. Hence, an adverse inference was drawn against the first respondent. The learnedTribunal though found that the appellant is entitled to get asum of Rs.73,400/- as compensation exonerated the Insurance company from paying the compensation on the basis of the adverse inference drawn against the first respondent. This is under challenge. MACA 2132/200734. We have heard the learned counsel for the appellant and the learned Senior counsel appearing for the 2ndrespondent – Insurance company.

We have also perused the impugned award. 5. It is true that the first respondent – owner-cum-driver failed to produce his driving licence in spite of the clear direction on the petition filed by the InsuranceCompany. Even if an adverse inference is drawn, the learned Tribunal should have directed the Insurancecompany to pay the amount of compensation and to recover the same from the first respondent – owner-cum-driver as driving the vehicle without a valid driving licence was only aviolation of the conditions of policy issued by the Insurancecompany.6. In the result, we allow this appeal. The direction in the impugned award exonerating the 2nd respondent – MACA 2132/20074Insurance company from paying the compensation is modified. It is hereby directed that the 2nd respondentshall pay the amount awarded to the appellant/claimant and they shall recover the same from the firstrespondent/owner-cum-driver. No costs. Sd/-PIUS C. KURIAKOSE, JUDGESd/-A.V. RAMAKRISHNA PILLAI, JUDGEks. True copyP.s.to Judge