KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No: 991/2003 JUDGMENT DATED:26-07-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU :PRESIDENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER National Insurance Company Ltd., Branch Office, High Lane Plaza, M.G.Road, Kasaragod, R/by its : APPELLANT Manager. (By Adv:Sri.Rajan.P.Kalliyath) Vs. K.A.Ummer, S/o Late Abdulla, Penalam, Cheroor Chengala, : RESPONDENT Now Residing/at Aysha Manzil, Pallam, Kasaragod. JUDGMENT JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT The appellant is the opposite party/Insurance company in OP.125/03 in the file of CDRF, Kasaragode. The appellant is under orders to pay a sum of Rs.8795/- towards the repair charges of the Motor Cycle and cost of the proceedings to the complainant. 2. The case of the complainant is that the motor cycle owned by him and covered by the policy of the opposite parties met with an accident on 29/11/2002 and that at the time he was the rider and his son was the pillion rider. In the accident his son and the travelers of the other motor cycle that collided with his vehicle also sustained injuries and the 3 were admitted in the hospital at Mangalore. According to him by mistake the name of his son Abdul Salam was mentioned as the rider of the motor cycle in the FIS. But during investigation it has came out that it was the complainant who was riding the motor cycle and charge sheet was filed against him before JFCM, Kasaragod and he pleaded guilty and was fined. Due to the accident the motor cycle was badly damaged and he incurred a sum of Rs.10034/- for repairs. The opposite parties repudiated the claim alleging that the vehicle was driven by his son who had no driving license. 3. In the version filed the opposite parties have asserted that it was Abdul Salam the son of the complainant who was riding the motor cycle and that the complainant was nowhere near the scene. It is pointed out that only 4 persons were injured and that on an after thought the complainant got admitted in the hospital on the next day. It is alleged that it is influencing the police that the complainant managed to substitute himself for his son and got the case registered against him. 4. The evidence adduced consisted of the testimony of PW1, DWs1 to 4, Exts.A1 to A7 and B1 to B8. 5. The counsel for the appellant has produced the order of Motor Accident Claims Tribunal, Kasaragod in OP(MV)Nos.443/03 and 485/03 (common order) and the order in OP(MV)No.183/03, OP(MV)No.443/03 and 485/03 were instituted by the rider and pillion rider of the other motor cycle that hit the motor cycle of the complainant. OP(MV)No.183/03 is filed by the son of the complainant/Abdul Salam against the complainant herein and the insurance company. The Motor Accident Claims Tribunal on detailed consideration of the evidence adduced after remand from the High Court of Kerala as per orders dated:28/4/2010 has exonerated the insurance company and directed the complainant herein/1st respondent in the OP(MV)s to reimburse the award amount if already paid by the insurance company to the complainants. It was found on examination of the case diary of the police and the evidence adduced that it was the son of the complainant who had no driving license who was driving the vehicle at the time and held that there was policy violation and insurance company cannot be held liable. It was particularly noted by the Motor Accident Claims Tribunal that the front portion of the motor cycle of the complainant was extensively damaged. Hence the rider would have sustained injuries. It was the son of the complainant who sustained injuries and was admitted in the hospital. The complainant got admitted in the hospital on the next day as he was having Malarial infection and not on account of any injuries. The intrinsic evidence established that it was not the complainant who was riding the vehicle but the rider was the son of the complainant. It was also noted that the 1st respondent in the OP(MV)s/ complainant did not adduce any contra evidence. On the other hand, the Forum in the instant case just relied on the final report filed by the police implicating the complainant as the accused and directed the opposite parties/appellant to reimburse the cost of repairs. We find that the finding of the Forum cannot be sustained. The appellant/Insurance company cannot be held liable as admittedly the son of the complainant who was riding the vehicle was not having driving license and an effective driving license is a condition in the policy. In the circumstances the order of the Forum is set aside and the appeal is allowed. Office will forward the LCR along with the copy of this order to the Forum. JUSTICE K.R. UDAYABHANU:PRESIDENT S. CHANDRAMOHAN NAIR : MEMBER VL. | 
