Allowed

Anilkumar v. B.H.Shyjubal

Kerala HC3 Nov 2022MACA/664/2014

Case brief

AI extract

What is this about?

The Court allowed the appeal against a Motor Accident Claims Tribunal order. It set aside the finding that the appellant lacked a valid driving licence after evidence was presented, thereby extinguishing the insurer's right to recover compensation from the insured.

What did the court decide?

The appeal allowed; the Tribunal's direction to recover compensation from the appellant set aside; liability fastened on the respondent insurer.

Anilkumar Vs B.H.Shyjubal — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

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MACA NO. 664 OF 2014

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AGAINST THE ORDER/JUDGMENT IN OPMV 866/2003 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA DATED 28.11.2008
APPELLANT/1ST RESPONDENT:

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ANILKUMAR

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ANIL BHAVAN, KURIVICODE, ELLUVILA P.O.,
NEYYATTINKARA.
BY ADV SRI.G.SUDHEER

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RESPONDENTS/APPLICANT & 2ND RESPONDENT:

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1 B.H.SHYJUBAL

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B.H.BHAVAN, POTTAYINVILA, MANATHOTTOM, VELLARDA VILLAGE, VELLARDA P.O., NEYYATTINKARA-695 001.

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2 THE MANAGER

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UNITED INDIA INSURANCE CO.LTD., PB 552, MALANKARA
BUILDING, VJT HALL ROAD, PALAYAM,

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THIRUVANANTHAPURAM-695 021.

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 R2 BY ADV. P. MURALEEDHARAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR HEARING ON 03.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

MACA No. 664 of 2014

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JUDGMENT

Dated this the 3^rd day of November, 2022

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In the appeal on hand, challenge is raised against an award passed by Motor Accident Claims Tribunal, Neyyattinkara (for short ‘Tribunal’) on 28.11.2008 in OP (MV) No.866/2003.

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Appellant is the 1^st respondent in the above Original Petition. He was the owner of the offending motorcycle bearing registration No.KL.01-N-6914 involved in the motor accident. The 1^st respondent sustained injuries in the motor accident and the above Original Petition was filed by him seeking for a sum of Rs.2,00,000/- as compensation. The registered owner and the insurer of the motorcycle alone were arrayed as respondents 1 and 2 in the Original Petition. On the basis of the evidence adduced by the parties the Tribunal arrived at a finding on rash and negligent riding of the motorcycle by its rider as the reason for the motor accident. The Tribunal has also arrived at the compensation payable to the petitioner and fixed the liability on the 2^nd respondent to deposit it in favour of the petitioner and to

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recover it from the 1^st respondent for his violation of policy

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MACA No. 664 of 2014

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conditions. Aggrieved by the aforesaid direction permitting recovery of the amount, the 1^st respondent has approached this Court in the appeal on hand.

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It is contended by Sri.G. Sudheer, the learned counsel for the appellant that the rider of the motorcycle was not arrayed as a party in the Original Petition. According to him, it was not even alleged in the written statement filed by the 2^nd respondent before the Tribunal that the 1^st respondent was not holding a valid and effective driving licence to drive the offending vehicle at the relevant time of accident. According to him, without a contention being raised to the effect, the Tribunal had arrived at a finding that the 1^st respondent was not holding a valid and effective driving licence at the relevant time of accident and on it’s basis directed the insurer to get the compensation amount after deposit, recovered from the 1^st respondent. According to him, the Tribunal is unjustified in arriving at such a finding and issuing a direction for recovery of the amount.

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The respondents though served with notice did not turn up to argue the appeal. This Court has taken note from the written statement filed by the 2^nd respondent in the Original

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MACA No. 664 of 2014

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Petition on hand that a contention was taken in Paragraph 7 as extracted hereinbelow:

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“1^st respondent may be directed to produce registration certificate, policy copy and driving licence of rider Balu for verification as it is the condition precedent for fixing any liability on this respondent.”

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An application was also found filed by the 2^nd respondent as I.A. No.1230 of 2005 in the Original Petition on hand seeking for a direction to the owner and rider of the motorcycle bearing registration No.KL.01-N-6914 to appear and produce the driving licence, if one was possessed by the rider of the motorcycle at the relevant time. The owner as well as the rider of the motorcycle were made as parties in the I.A and they were also found served with notice. But, they failed to turn up and produce the driving licence called for. In the above circumstances that the Tribunal was constrained to take an adverse inference that the rider of the motorcycle, was not holding a valid and effective driving licence empowering to ride it at the relevant time of accident. Tribunal has also observed based on the description in

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Ext.A4 (Final Report) that the nature of the driving licence reportedly held by the 1^st respondent is not known. Accordingly

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MACA No. 664 of 2014

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that the liability was fixed on the 2^nd respondent to indemnify the 1^st respondent by depositing the compensation arrived at in favour of the petitioner and to get it recovered from the 1^st respondent.

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Sri.Sudheer, the learned counsel for the appellant has produced the original driving licence alongwith a true copy of it as per the direction of this Court and filed I.A. No.1 of 2022 under Order XLI Rule 27 CPC seeking to receive it as additional evidence. The document proposed to be marked in evidence being a relevant one and very much necessary for arriving at a just decision in the case, I.A. No.1 of 2022 is allowed and the driving licence is marked in evidence as Ext.B2. It is found from Ext.B2 that it was issued on 11.10.2000 and valid till 10.10.2020. It is also noticed that the rider was authorised to ride a motorcycle with gear from 11.10.2000 till 10.10.2020. It is noticed that the rider of the motorcycle was holding a valid and effective driving licence to ride the motorcycle as on 29.11.2002.

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In the above circumstances, the finding of the Tribunal that the rider of the motorcycle was not holding a valid and effective driving licence at the relevant time of accident and

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MACA No. 664 of 2014

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issuance of a direction to the 2^nd respondent to have the compensation amount recovered from the 1^st respondent after depositing the same in favour of the petitioner is only to be set aside.

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In the result, the appeal stands allowed. The compensation awarded by the Tribunal in favour of the petitioner is maintained. The direction to the 2^nd respondent to have recovery of the compensation amount after depositing the same in favour of the petitioner, from the 1^st respondent is set aside and liability is fastened on the 2^nd respondent to indemnify the insured.

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M.A.C.A. stands allowed accordingly.

Sd/-

MARY JOSEPH,

JUDGE.

ttb

MACA No. 664 of 2014

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APPENDIX OF MACA 664/2014

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PETITIONER’s EXHIBITS :

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Exhibit P1ORIGINAL DRIVING LICENCE OF B.K.BALU

Anilkumar v. B.H.Shyjubal

Case brief

What is this about?

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Anilkumar v. B.H.Shyjubal

Case brief

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