MUTHAYAMMAL Vs. MARTIN JOVIALDASS

JUDGEMENT

(1.) THIS is an appeal filed by the claimants in M.C.O.P.No.756 of 1998 on the file of the Motor Accidents Claims Tribunal (I Additional Sub Judge), Erode against the award dated 19.10.2000 passed therein totally exonerating the third respondent herein/the insurer of the offending vehicle holding that the rider of the offending vehicle did not possess a valid driving licence at the time of accident.

(2.) THE first appellant is the mother, second appellant is the wife and the appellants 3 and 4 are the sons of deceased Gnanasundaram, who died in an accident that took place at about 5.30 p.m. on 27.08.1997 on Periyasemur-Sathi Main Road opposite to Indian Overseas Bank. Admittedly, while the above said deceased Gnanasundaram was proceeding in his bicycle in the direction of west to east, the motorcycle bearing Registration No.TN 33 A 9833 belonging to the second respondent herein came there in the opposite direction and hit the above said deceased which resulted in instantaneous death. Claiming that the accident occurred due to the rash and negligent driving of the motorcycle by its rider namely, the first respondent herein and that the said motorcycle stood insured with the third respondent herein, the appellants herein filed the MCOP claiming a sum of Rs.5,00,000/- as compensation. THE accident in question has not been disputed. THE finding of the Tribunal that there was an accident on 27.08.1997 in which the deceased Gnanasundaram was fatally knocked down by the motorcycle bearing Registration No.TN 33 A 9833 belonging to the second respondent has not been challenged by the respondents in this Civil Miscellaneous Appeal either by filing a separate appeal or by filing a cross objection. THE finding of the Tribunal that the accident was due to the negligence and rashness on the part of the rider of the said motorcycle has also not been challenged.

(3.) THE third respondent (insurer) chose to examine an employee of the RTO office to show that the first respondent was not possessing a valid driving licence. When the Tribunal has came to the conclusion that the first respondent was not a person who was driving the vehicle at the time of accident, whether he possessed a valid driving licence or not is of no consequence. However, since the second respondent/the owner of the offending vehicle chose to remain exparte, the Tribunal came to the conclusion that the vehicle should have been driven by a person not holding a valid driving licence. Whenever the Insurance Company comes forward with a plea that there is a violation of policy condition enabling the insurer to rescind the contract, it is for the Insurance Company to prove it by adducing proper evidence. In this case, excepting the evidence adduced through R.W.2, an employee of the RTO office, no other witness has been examined. R.W.2 was examined to prove that the first respondent did not possess a valid licence. Clear evidence has not been adduced on behalf of the third respondent to the effect that the vehicle was driven by any other person and such other person did not hold a valid driving licence.