NATIONAL INSURANCE CO.LTD Vs. JAREESH

JUDGEMENT

(1.) The 3rd respondent insurance company preferred the above appeal assailing the award of the Motor Accidents Claims Tribunal, Tirur in O.P.(M.V.)No.963/2005, essentially aggrieved by refusal of their right of recovery from the insured, claimed on the premise that the 1st respondent driver was not duly licensed to drive the vehicle in question at the time of accident.

(2.) The short question involved in this Motor Accidents Claims Appeal is whether the appellant/insurance company ought to have been afforded a right to recover the compensation amount from the 2nd respondent/owner of the vehicle, since it is established that the 1st respondent/driver was not duly licensed at the time of accident. The appellant/insurance company (3rd respondent in the O.P.) took a contention that the 1st respondent had no valid licence at the time of accident to drive the car, which knocked down the victim girl, aged 7 years, who later succumbed to the injuries. The 1st respondent/driver remained ex parte. The appellant (3rd respondent in the O.P.) filed I.A.No.1434/2007 calling upon the 1st respondent/driver to produce his driving licence. Though notice was issued, the same was not served upon him. The Tribunal found that the 1st respondent was not duly licensed, inasmuch as he had not contested the proceedings. However, the Tribunal found that the 3rd respondent/insurance company (appellant herein) failed to prove that the absence of a driving licence was so fundamental, so as to have contributed to the cause of accident. In this regard, the Tribunal relied upon the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Swaran Singh & others [(2004) 3 SCC 297]. The Tribunal went on to hold that the burden to prove the defence as regards violation of a policy condition is squarely upon the insurer (appellant herein) and that there is not even a plea in the written statement filed by the insurance company that the insured/owner had failed to exercise reasonable care in the matter of entrusting the vehicle to the 1st respondent; or that the insured had knowingly allowed the 1st respondent to drive the vehicle without a valid driving licence. The Tribunal further found that there exists no evidence that the absence of driving licence had caused or contributed to the accident. On such premise, the Tribunal mulcted the responsibility/liability on the appellant/insurance company, without there being a corresponding enabling direction to recover the amount from the owner/insured.

(3.) Heard Smt.K.S.Santhi, learned Standing Counsel for the appellant and Sri.P.K.Sajeev, learned counsel for the 2nd respondent/owner. There is no representation for the 1st respondent/driver before this Court as well.