IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 26^TH DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 MACA NO. 632 OF 2022 AGAINST THE AWARD DATED 14.09.2021 IN OPMV NO.612 OF 2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD APPELLANT/3rd RESPONDENT:

UNITED INDIA INSURANCE COMPANY LIMITED, TIGER HILLS, MUNICIPAL OFFICE ROAD, KASARAGOD NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI 682 011.

BY ADV PREETHY R. NAIR RESPONDENTS/RESPONDENTS 1 & 2:

1 SHIVAPRASAD N.

AGED 35 YEARS S/O. SHESHAPPA, RESIDING AT SRI MATHRU NILAYA, NARAYANA MANGALAM, KOIPADY VILLAGE, MANJESHWAR TALUK, KASARAGOD 671 321.

2 ABDUL IRSHAD.K., S/O. MOHAMMED, RESIDING AT KUNTANGARADKA, NEAR LAKSHAMVEEDU, KUMBLA P.O., KOIPADY, VILLAGE, MANJESHWAR TALUK, KASARAGOD 671 321.

BY ADV JIJI S THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2024, THE COURT ON ON 26.03.2024 DELIVERED THE FOLLOWING:

MARY JOSEPH, J.

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M.A.C.A. No. 632 of 2022 - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Dated this the 26th day of March, 2024

JUDGMENT

The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Kasaragod, on 14.09.2021 in O.P(M.V) No.612/2019. Appellant is the insurer of a motorcycle bearing Registration No.KL-14Q-7266 which hit one Mr.Gopalakrishna Gatty and caused fatal injuries to him, on account of which he succumbed to death.

2. The Tribunal found the rider of the motorcycle referred to above, rash and negligent and the appellant was directed to satisfy the award. Main challenge raised in the appeal was against the liability fixed on the appellant to indemnify the 2^nd respondent, for the reason that the 1^st respondent was established from the evidence adduced, as not holding a valid driving licence to ride the motorcycle at the relevant time of the motor accident. It being violation of a condition of the policy, the appellant ought to have been granted the right to recover the compensation from 1^st and 2^nd respondents after paying the same in favour of the petitioners.

3. According to Smt.Preethi R. Nair, the learned counsel for the appellant, the Tribunal ought to have relied on Ext.A2, the final report laid by the investigating officer in the crime registered with reference to the motor accident, chargesheeting the 1^st respondent for an offence under Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988 (for short, 'the M.V Act'). According to her, the Tribunal ought to have granted recovery rights in favour of the appellant, on the basis of the dictums of the Apex Court in National Insurance Company Ltd. Vs. Swaran Singh and Others [2004 ACJ 1] and Pappu and Others Vs. Vinodkumar Lamba and Another [2018 ACJ 690]. Thus she sought to set aside the award to the extent the appellant was fastened with liability to indemnify the insured and to grant the right to recover the compensation from the 2^nd respondent, the registered owner/insured of the motorcycle, after it being deposited in favour of the petitioners.

4. In the impugned award, 1^st respondent was set exparte for his failure to turn up to contest the Original Petition despite service of notice on him. Though entered appearance following the service of notice, the 2^nd respondent did not file any written statement. 3^rd respondent in it's written statement had taken so many contentions, but, those do not incorporate one to indicate that the 1^st respondent at the relevant time of the motor accident was not holding a valid driving licence.

5. Chargesheet is marked in evidence by the petitioners as Ext.A2. True that the 1^st respondent was chargesheeted for an offence under Section 3(1) read with Section 185 of the M.V. Act. But in the written statement filed by the 3^rd respondent in the Original Petition, it failed to take a contention that the 1^st respondent was not holding a driving licence as on date of the motor accident. Such a contentio