K. Muraleedharan v. P. V. Radhakrishnan and Dasan @ Haridasan and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934 MACA.No. 1046 of 2010 ( ) ------------------------OPMV.1254/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM. APPELLANT/2ND RESPONDENT: --------- K.MURALEEDHARAN, S/O.MADHAVI AMMA CHAKKACHATTIL HOUSE, P.O.CHERPULASSERI 679 503 OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT/PETITIONER & RESPONDENTS 1 & 3: -------------- 1. P.V.RADHAKRISHNAN AGED 55 YEARS, S/O.MADHAVAN NAIR, VELLATTU HOUSE P.O.CHERUPULASSERY 679 503, OTTAPALAM TALUK PALAKKAD DISTRICT. 2. DASAN @ HARIDASAN AGED 45 YEARS, S/O.PARUKUTTY AMMA PADINJAREPATTU VEEDU, KAVUVATTOM P.O.CHERUPULASSERY 679 503, PALAKKAD DISTRICT. 3. THE NEW INDIA ASSURANCE CO. LTD IIND FLOOR , JRJ COMPLEX, MAIN ROAD O.P.OTTAPALAM 679 101. R1 BY ADV. SRI.SANTHEEP ANKARATH R3 BY ADV. SRI.VIJU THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2012, ALONG WITH MACA. 1047/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.NO.1046/2010 ORDER ON I.A.NOS.1529/2010 & 940/2011 IN MACA.1046/2010 --------------- Dismissed 25/7/2012 Sd/HARUN-UL-RASHID, JUDGE. True Copy P.S. TO JUDGE ## **HARUN-UL-RASHID,J** **------------------------------** M.A.C.A.NOS.1046 & 1047 OF 2010 **-----------------------------DATED THIS THE 25TH DAY OF JULY, 2012** ## **JUDGMENT** The 2[nd] respondent owner is the appellant in both the appeals. The appeals are directed against the revised award in O.P. (MV).Nos.1254/2005 and 1292/2005 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The said original petitions were tried together and common award was passed. By the original award dated 1-2-2008 the Tribunal partly allowed the claim in O.P. (MV).No.1254/2005 and allowed the petitioner to realise compensation of `34,700/- with interest. The Tribunal also allowed the claim in the connected O.P.(MV).No.1292/2005 and allowed the petitioner to realise compensation of `12,550/- with interest. Subsequently, revised award was passed on 25/1/2010 holding that the Insurance Company is entitled to reimburse the amount from respondents 1 and 2 after fulfilling the award. The Tribunal directed the Insurance Company to deposit the amount initially. Both appeals are preferred by the owner **-2-** ## **M.A.C.A.Nos.1046 & 1047/2010** of the vehicle challenging the revised award. The parties are hereinafter referred to as the claimant and respondents as arrayed in the original petitions. 2. In the original award the Tribunal allowed the Insurance Company to recover the amount from the 2[nd] respondentowner of the vehicle. At the instance of the owner of the vehicle, who is one and the same appellant in both the appeals , the question as to whether the direction issued to recover the amount from the owner is valid and proper was allowed to be re-agitated as the owner of the vehicle was set ex parte in the proceedings. Whether the Insurance Company is entitled to realise the amount from the owner of the vehicle was the only question canvassed before the Tribunal. The learned counsel for the 2[nd] respondentowner contended that only because the licence of the lst respondent-driver expired at the time of accident, there is no violation of policy conditions. According to him, the Insurance Company have no case that the accident took place due to the **-3-** ## **M.A.C.A.Nos.1046 & 1047/2010** expiry of the licence of the driver. In short, it is contended that there is no violation of the policy conditions. 3. The learned counsel for the insurance company contended that the driver of the offending vehicle did not have a valid and effective driving licence to drive the vehicle at the material time of the accident. The learned counsel also relied on the decisions reported in _**Sardari and others v. Sushil Kumar and others**_ **(2008 ACJ 1307),** _**National Insurance Company v. Vidyadhar Mahariwala and others**_ **(AIR 2009 SC 208),** _**New India Assurance Co. Ltd. v. Suresh Chandra Aggarwal**_ **(2009(15) SCC 761)** , _**Ishwar Chandra and others v. Oriental Insurance Co.Ltd and others**_ **(2007 ACJ 1067)** , _**Ram Babu Tiwari v. United India Insurance Company Ltd. and others**_ **(2008 (8) SCC 165) and** _**National Insurance Co. Ltd. v. Kusum Rai**_ **(2006 (2) KLT 300 (SC))** and canvassed the position therein that the insurance company is not liable to compensate the claimant as an insurer. 4. The Tribunal held that there is no evidence in the **-4-** ## **M.A.C.A.Nos.1046 & 1047/2010** police records in the connected criminal case to believe the defence of the Insurance Company that the 1[st] respondent is not having a valid driving licence. ## 5. The Apex Court in _**National Insurance Company v. Swaran Singh**_ **(2004(1) KLT 781(SC))** held as follows: “ _The person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability._ ” It was also held that, “ _Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable_ **-5-** ## **M.A.C.A.Nos.1046 & 1047/2010** _care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time”_ . Clause (6) in the summary of findings in paragraph 102 in the above referred decision it was held that unless the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the conditions of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. From the above said dictum it is clear that not only fake or invalid driving licences or disqualification of the driver for driving at the relevant time are not themselves available to the insurer against the insured or third parties, the absence of licence is also, it is stated, is not by themselves a defence available to the **-6-** ## **M.A.C.A.Nos.1046 & 1047/2010** insurer in a case where a person drove the vehicle without a licence. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was disqualified to drive at the relevant time. Therefore, it is clear that the absence of driving licence by itself is not a defence available to the insurer. The Apex Court in paragraph 77 of the _**Swaran Singh's**_ case (supra) considered the specific question as to the liability of the insurer, when admittedly no licence was obtained by a driver. The Apex Court held as follows: “ _Where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in_ . _its defence and avoid liability”_ ## 6. The insurer in order to succeed in its defence and to avoid its liability in a case like this, mere absence of the driving **-7-** ## **M.A.C.A.Nos.1046 & 1047/2010** licence by the person who drove the vehicle at the time of accident is not enough, the insurance company has to prove that the vehicle was allowed consciously to be driven by the owner of the vehicle by a person who is not holding a valid licence. So, there should be evidence to show that the owner after full knowledge about the fact that the person who drove the vehicle has no licence allowed consciously to drive the vehicle. The insurer also has to prove that the owner was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy. In this case, the insurance company did not adduce any evidence to show that the owner of the vehicle consciously allowed the second respondent to drive the vehicle. The insurance company also did not give any evidence to prove that the owner of the vehicle was guilty of negligence and the owner failed to exercise reasonable care in the matter of fulfilling the conditions of policy. 7. On the basis of the facts, circumstances and evidence **-8-** ## **M.A.C.A.Nos.1046 & 1047/2010** recorded and in the light of the legal principles laid down in **Swaran Sing's case (2004 (1) KLT 781)** , 7this Court is of the view that the Insurance Company is liable to indemnify the insured, therefore to pay the amount awarded and is not entitled to reimburse the same from the appellant. In the result, the appeals are allowed. The impugned award passed by the Tribunal is set aside to the extent of allowing the Insurance Company to realise the award amount with interest from respondents 1 and 2 in the respective original petitions. No order as to costs. Sd/- **HARUN-UL-RASHID, JUDGE.** **kcv.**