IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 542 of 2008()
1. THE ORIENTAL INSURANCE COMPANY LIMITED
... Petitioner
Vs
1. MUHAMMED SHERIL T.M.,
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.ANIL S.RAJ
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :20/03/2009
O R D E R
R. BASANT &
C.T. RAVIKUMAR, JJ.
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M.A.C.A. Nos.542 & 583 of 2008
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Dated this the 20th day of March, 2009
JUDGMENT
Basant,J.
These appeals are filed by the Insurance Company and
they are directed against a common award passed under which
the owner of a vehicle as also the injured who was riding the
vehicle claimed compensation for the loss suffered to the
vehicle as also the personal injuries suffered by the rider of the
vehicle. It was a two wheeler. The respondent in MACA
No.542/08 is the rider of the motor-cycle and the respondent in
MACA No.583/08 is the owner of the vehicle.
2. They alleged that they have suffered loss in an
accident which had taken place on 5/12/99. The rider – a
young person aged about 16 years, was riding a motor-cycle
along the National Highway. He did not have a valid driving
licence. He was not competent to hold a driving licence. He
M.A.C.A. Nos.542 &
583 of 2008 -: 2 :-
was riding from north towards south; whereas the vehicle driven
by the 1st respondent insured by the appellant herein was
proceeding in the opposite direction along the road. The road
had a total width of 7 Mtrs. The only evidence afforded to the
court to ascertain the cause of the accident is the oral evidence
of the claimant – rider of the motor-cycle/insured who was
examined as P.W.1. In his evidence he has spoken clearly that
he was proceeding from north towards south along the western
end of the road and the incident occurred when the vehicle
insured by the appellant driven by the 1st respondent which came
into opposite direction hit his motor-cycle. No contra evidence is
adduced. In the course of cross-examination, no material has
been brought out to suggest that the version of P.W.1 cannot be
accepted. In addition to this, we have a clinching circumstance
that the police, after due investigation, had come to the
conclusion that the accident had taken place on account of the
negligence of the part of the driver of the vehicle insured by the
appellant. No contra evidence whatsoever has been adduced.
3. It will be relevant to note that though a scene mahazar
M.A.C.A. Nos.542 &
583 of 2008 -: 3 :-
has been marked, it is not possible to ascertain from the scene
mahazar the precise spot of impact. Very surprisingly the police
officer who prepared the scene mahazar appears to have omitted
to note the precise distance to the spot of impact from either
kerb of the tarred road.
4. We find no merit to interfere with the discretion
exercised by the Tribunal to place reliance on the oral evidence
of P.W.1 which is supported by the broad circumstance that the
police also, in the course of investigation, had come to the
conclusion that the negligence was on the part of the driver of
the vehicle insured by the appellant.
5. It has come out in evidence that the injured was a boy
aged 16 years and did not possess a driving licence. The
learned counsel for the appellant contends that this is proof
positive of the negligence on the part of the rider of the vehicle
and the owner of the vehicle who had given the vehicle to such a
rider to use the motor-cycle without a valid driving licence.
6. We must say that it is necessary for the system to frown
upon such unauthorised use of the vehicle by persons who, on
M.A.C.A. Nos.542 &
583 of 2008 -: 4 :-
account of their young age, are not in law competent to hold a
driving licence. But the learned counsel for the respondents
placed reliance on a decision in Sudhir Kumar Rana v.
Surinder Singh and Others (2008 (3) KHC 883 (SC)) in which
the Supreme Court has clearly held that the mere fact that the
victim does not possess a valid driving licence at the time when
he was driving the vehicle and suffered the injuries is no reason
to choose to come to a conclusion that there was any
contributory negligence on the part of such victim. That was
also a case where a person below the age of majority and hence
incompetent to drive/ride a motor-cycle, was driving the vehicle
at the relevant time and had suffered injuries. If there were
semblance of materials to indicate that there was any amount of
negligence on the part of the incompetent and young rider of
the motor-cycle, we would certainly have agreed with the
learned counsel for the appellant that the disapproval of the
system must be shown by deduction of a proper amount from the
quantum of loss suffered by the claimants. But in the total
absence of any such materials, though we are dissatisfied with
M.A.C.A. Nos.542 &
583 of 2008 -: 5 :-
the conduct of the incompetent minor rider riding a vehicle and
the owner entrusting the vehicle to him, we are satisfied that no
interference is necessary in the facts of these appeals. No other
contentions are raised.
7. In these circumstances, these appeals are dismissed.
No costs.
R. BASANT
(Judge)
C.T. RAVIKUMAR
(Judge)
Nan/