Herbert vs Johnkutty and Oriental Insurance Company, ''U'' Brothers Building Guruvayoor Road, Ernakulam.

Ramakrishna Pillai, J.—The claimant has come up in appeal, challenging the direction of the Tribunal to recover the award amount from the registered owner of the vehicle exonerating the Insurance company as it was contended by the Insurance company that the driver of the offending vehicle involved in the accident was not having a valid driving licence at the time of the accident. Allegedly while the appellant was riding on the pillion of a motor cycle, he was hit down by another motor cycle which was coming from the opposite direction. The learned Tribunal fixed the primary liability on the driver of the motor cycle which was coming from the opposite direction. The owner -cum-driver of the offending vehicle remained ex parte through out the proceedings. The respondent-Insurance company took a contention that the owner-cum-driver was not having a valid driving licence. They have also filed a petition u/s 170 of the Motor Vehicles Act which was allowed. Another petition, I.A. No.1677/2005 was also filed by the Insurance company for a direction to the first respondent to produce the driving licence. That I.A. also was allowed. However, the first respondent did not respond. Hence, an adverse inference was drawn against the first respondent. The learned Tribunal though found that the appellant is entitled to get a sum of Rs.73,400/- as compensation exonerated the Insurance company from paying the compensation on the basis of the adverse inference drawn against the first respondent. This is under challenge.

We have heard the learned counsel for the appellant and the learned senior counsel appearing for the 2nd respondent - Insurance Company. We have also perused the impugned award.

It is true that the first respondent - owner-cum- driver failed to produce his driving licence in spite of the clear direction on the petition filed by the Insurance Company. Even if an adverse inference is drawn, the learned Tribunal should have directed the Insurance Company to pay the amount of compensation and to recover the same from the first respondent - owner-cum-driver as driving the vehicle without a valid driving licence was only a violation of the conditions of policy issued by the Insurance Company. In the result, we allow this appeal. The direction in the impugned award exonerating the 2nd respondent - Insurance Company from paying the compensation is modified. It is hereby directed that the 2nd respondent shall pay the amount awarded to the appellant/claimant and they shall recover the same from the first respondent/owner-cum-driver. No costs.