An insurer cannot evade liability solely due to the absence of a valid driving license; they must compensate and can seek recovery from the vehicle owner.

JUDGMENT

This appeal is filed by the claimant in O.P.(MV) No.1725 of

2011 on the file of the Motor Accidents Claims Tribunal, Kottayam, challenging the impugned award exonerating the insurer and seeking enhancement of compensation. The respondents herein are the respondents before the tribunal.

2. According to the claimant, on 25.05.2011 at about 7.15 p.m., while the claimant was riding a motorcycle bearing registration No.KL-06/B-6602 along Kanjirappaly – Manimala road, another motorcycle bearing registration No.KL-05/D-1664 ridden by the first respondent in a rash and negligent manner hit against the claimant’s motorcycle and as a result, he sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ₹6,00,000/-.

3. Though notice was served on respondents, the first and second respondents, the driver and the owner of the offending vehicle respectively, remained absent and were set ex parte.

The third respondent – insurer filed a written statement, admitting the insurance policy, disputing the liability and the quantum of compensation claimed. They contended that the first respondent was a minor at the time of accident. Hence the insurance company is not liable to indemnify the insured. Before the tribunal, Exts.A1 to A14 and Ext.B1 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to negligence on the part of the first respondent and awarded a sum of ₹3,08,060/-, as compensation under different heads with interest @ 7.5% per annum from the date of petition till realization with proportionate costs against the second respondent being the owner. Aggrieved by the order of the tribunal, exonerating the insurance company from liability and dissatisfied with the quantum of compensation, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurance company.

5. The learned counsel appearing for the appellant submits that the tribunal had exonerated the insurance company from the liability to pay compensation to the claimant, for the reason that the driver of the offending vehicle did not possess a valid driving licence at the time of accident. The learned counsel further submits that, even though there was no valid driving licence for the driver of the offending vehicle, the tribunal ought not have completely exonerated the insurance company from the liability. Instead, the tribunal should have directed the insurance company to pay the award amount and then recover the same from the owner of the vehicle.

6. I find force in the argument. In National Insurance Co. Ltd. v. Swaran Singh ( 2004 (3) SCC 297 ) it was held by the apex court that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties and the insurer will have to pay and the recover the same from the owner. Since the tribunal had found that the driver of the offending vehicle did not possess a valid driving licence at the relevant time of accident, and since the owner has not produced any document to show that there was valid driving licence for the driver, I find that the insurer can be directed to pay the award amount and then recover the same from the owner of the vehicle. The award of the tribunal is modified accordingly.

7. The learned counsel for the appellant claims enhancement mainly under the following heads:-

I. Notional Income The learned counsel for the appellant submitted that though an amount of ₹8,125/- was claimed as the monthly income of the appellant, who claimed to be a