M.A.C.A. No. 493 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935** ## **MACA.No. 493 of 2014** **-----------------------OP(MV)NO. 337/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 28-02-2013** **........** ## **APPELLANT/2ND RESPONDENT IN OP(MV):** **----------------------------------------------------------------** **SUNNY ABRAHAM, THOTTICHIRAYIL HOUSE, “PRIYADARSHNI”, VAIKOM PO, KOTTAYAM - 686 141.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS/3RD RESPONDENT/PETITIONER & 1ST RESPONDENT IN OP(MV):** **----------------------------------------------------------------------------------** **1. THE NEW INDIA INSURANCE COMPANY LIMITED., DIVISIONAL OFFICE, KOTTAKKAL ARYA VAIDHYASALA BUILDING, M.G.ROAD, ERNAKULAM, KOCHI - 682 016.** **2. AMBALIKA C.K., W/O.MURALI, CHALITHARA HOUSE, KAMBIVELIKKAKAM BHAGOM, POOTHOTTA PO, MANAKKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM, PIN - 682 307.** **3. AMEER.S., S/O. SHAMSUDHEEN, CHEMMAZHATH HOUSE, POLASSERY BHAGOM, VAIKOM PO, NADUVILA VILLAGE, VAIKOM TALUK, KOTTAYAM, PIN - 686 141.** **R1 BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-03-2014 ALONG WITH WPC. NO.28208/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** **= = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of March, 2014** ## **JUDGMENT** The appeal and the connected writ petitions have been filed by the insured/owner of the stage carriage involved in the accident. He challenges the permission granted to the Insurance Company to recover the amounts paid by them to the claimants from him on the ground that the driver of the stage carriage was not holding a valid driving licence at the time of accident. 2. Heard the learned counsel appearing for the insured/owner and the learned counsel appearing for the first respondent Insurance Company. In the nature of the judgment being passed in these cases, notice to the **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 2 respondents 2 and 3 is dispensed with as unnecessary. 3. The second respondent in the appeal and the connected writ petitions preferred petitions claiming compensation before the Motor Accidents Claims Tribunal, Ernakulam, on account of the injuries sustained by them in the motor accident involving a stage carriage. Learned Tribunal awarded different amounts as compensation to the claimants. The insurance cover for the stage carriage involved in the accident was admitted. But, it was found by the Tribunal that the driver of the stage carriage was not holding a driving licence for driving the stage carriage at the time of accident. Therefore, the Insurance Company was directed to pay the amounts awarded to the claimants and get them recovered from the insured/owner. 4. Whether the Insurance Company was liable to indemnify the insured/owner is the short question to be **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 3 considered and answered in these cases. Learned counsel for the insured/owner argued that the driver of the stage carriage was holding a valid driving licence at the time of accident. In order to substantiate the same, the driving licence particulars of the driver have been produced. On the other hand, the learned counsel for the Insurance Company submits that the driver of the stage carriage was neither holding a valid driving licence nor a badge for driving such a vehicle. Since the stage carriage involved in the accident was a transport vehicle, necessarily, the driver should possess not only a valid driving licence but also a badge. Here, the driver was not holding both, he further submits. 5. The driving licence particulars show that the driver was holding a valid driving licence for driving a transport vehicle from 8.11.2005 to 7.11.2008 and from 7.9.2009 to 6.9.2012. The accident in this case occurred on 12.12.2008. **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 4 Therefore, it goes without saying that the driver was not holding a valid driving licence for driving a transport vehicle on the date of the accident. The driving licence particulars further show that the driver was holding a valid badge from 7.9.2012 to 6.9.2015. It is also discernible from this document that the badge was originally issued in 2005. But, this document shows that, on the date of the accident, the driver was not holding a valid badge. 6. The question regarding the absence of a valid driving licence for the driver and its consequence had been considered by the Honourable Supreme Court in **National** **Insurance Co.Ltd. v. Swaran Singh [2004(1)KLT 781** (SC) **]** . The findings entered by the Honourable Supreme Court in respect of this matter contains in paragraph 102(vi) of the judgment which reads as follows:- “Even where the insurer is able to prove breach on the part of the insured concerning the policy **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 5 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 condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under S. 149(2) of the Act.” Going by the law laid down by the Honourable Supreme Court, unless the Insurance Company is able to prove that the absence of driving licence, in fact, contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured/owner on the basis of the Insurance Policy. 7. This Court in **Kuruvila v. Jijo Joseph[2013(4) KLT 700]** has considered the question of absence of a valid **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 6 badge for the driver and laid down in paragraph 38 of the judgment as follows:- “Now I shall revert to the facts of the cases involved in these appeals. Except in M.A.C.A. No.1722 of 2012, the finding entered by the Tribunals concerned is only regarding want of badge/authorisation for the driver to drive the transport/goods vehicle involved. There is also no finding that the absence of such badge/authorisation in any way contributed to the cause of the accident. Hence, the breach cannot be said to be fundamental as well. Hence in the light of what I have stated above, that by itself cannot exonerate the insurance company from its liability to the third parties (claimants) or, give it a right of recovery of the amount from the insured. The insurers are bound to indemnify the insured. Hence in all the appeals other than in M.A.C.A. No.1722 of 2012, contention of the insurance companies either that it is not liable, or that it is entitled to recover the amount of compensation from the insured on payment of the same to the claimants cannot be accepted.” **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 7 Therefore, unless the Insurance Company is able to prove that the absence of badge, in fact, contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured/owner on the basis of the Insurance Policy. 8. In the case on hand, there is no finding that the absence of driving licence or badge has contributed to the cause of the accident. Moreover, no attempt was made by the Insurance Company to prove that the absence of driving licence or badge has contributed to cause the accident. Therefore, the Insurance Company cannot avoid their liability under the Policy and they are liable to indemnify the insured/owner. In that view of the matter, the permission granted by the Tribunal to the Insurance Company to recover the amounts paid to the claimants from the insured/owner is liable to be set aside and hence, it is set **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 8 aside. The Insurance Company is liable to indemnify the insured/owner on the basis of the Insurance Policy. The appeal and the connected writ petitions are thus allowed. **Sd/-** **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S.to Judge **M.A.C.A. No. 493 of 2014 & W.P.(C) Nos.28208, 28209, 28210, 28211, 28212, 28563, 28566, 28568, 28579, 28580 & 28594 of 2013** 9