IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1963 of 2005()
1. UNITED INDIA INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. ANTONY, S/O.PAULOSE,
... Respondent
2. OUSEPH.V.D,
3. VILASAN,
For Petitioner :SRI.M.A.GEORGE
For Respondent :SRI.ANTONY MATHEW
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/10/2010
O R D E R
M.N.KRISHNAN, J
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MACA No.1963 OF 2005
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Dated this the 4th day of October 2010
JUDGMENT
This appeal is preferred by the insurance company
against the award passed by the Motor Accidents Claims
Tribunal, North Paravur in O.P.(MV)No.126 of 2001. The
claimant was walking along a road and it is submitted that he
was hit by a motor cycle as a result of which he sustained
injuries. The Tribunal did not entertain the plea of the
insurance company that it is entitled to reimbursement from
the owner because the rider of the bike was only having
learner’s licence. The learned Tribunal relied on the decision of
the Supreme Court in National Insurance Co.Ltd. v. Swaran
Singh(2004(1) KLT 781) and held that the insurance company
is bound to pay the amount. I am afraid that the learned
Tribunal has not properly applied the decision. Otherwise he
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would not have jumped to that conclusion. What is laid down
in Swaran Singh’s case is that a learner’s licence is also a valid
licence or a duly authorised licence provided it fulfills the
conditions enumerated for a learner’s licence. Under the
Central Motor Vehicles Rules and the form which is
exclusively kept for issuance of learner’s licence the form itself
very clearly indicates in the form of a warning that when a
learner’s licence holder is riding he must have a person with
valid licence as a pillion rider. This aspect of the matter was
not considered by the Tribunal at all. Now the learned counsel
for the owner as usual at the time of hearing has submitted
that an opportunity may be given to him to prove whether the
pillion rider was having a licence or not. In this case, there
cannot be any substitution of a pillion rider for the reason that
the pillion rider has also come before the Tribunal and that
case was jointly disposed of with this case. If the pillion rider
has got a valid driving licence, then the owner will be able to
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satisfy the requirements of a duly authorised learner’s licence
and therefore he would not be liable to reimburse the amount
to the insurance company. If, on the contra, it is found that
the pillion rider does not have a driving licence to ride a two
wheeler, then there is not a proper and duly authorised
learner’s licence as envisaged in Swaran Singh’s case which
entitles the insurance company to get reimbursement from the
owner. Learned counsel prays for an opportunity which I feel
can be given so that if there is a duly licensed person on the
back of the two wheeler the owner can get exonerated from
reimbursement.
Therefore the award under challenge is set aside to the
limited extent of proving whether the pillion rider who was
accompanying the rider of the bike did have due licence to
drive a two wheeler. If the answer is in the positive, the owner
can succeed and if it is in the negative, the owner has to
reimburse. For this, permission is granted to the owner to let
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in oral as well as documentary evidence and the matter be
disposed of in accordance with law. Needless to say that the
insurance company can also adduce evidence in that regard.
Parties are directed to appear before the Tribunal on
8.11.2010.
MACA is disposed of accordingly.
M.N.KRISHNAN, JUDGE
Cdp/-