MACA.No. 262 of 2010 (E)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 17TH DAY OF JULY 2012/26TH ASHADHA 1934 MACA.No. 262 of 2010 (E) -----------------------OPMV.1632/1999 of ADDL.D.C.& MACT,PATHANAMTHITTA ## APPELLANT/2ND RESPONDENT: ------------------------------------- NATIONAL INSURANCE CO. LTD., PATHANAMTHITTA, REP. BY THE MANAGER KOCHI REGIONAL OFFICE, M.G.ROAD, COCHIN-35. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 3: ------------------------------------------------------- 1. JOHNSON, S/O.YOHANNAN, AGED 30, PATTASSERIL KIZHAKKETHIL, CHAITHRAM PARAKODE, ADOOR VILLAGE. 2. TINCY GEORGE THAMPY, S/O.THAMPY GEORGE, KAPPIL VEEDU, KIZHAKKUPRAM PATHANAMTHITTA. 3. SONY, SONY VILLA, CHARUVU PURAYIDOM, ERUPPUPPARA, KOTTAYAM VILLAGE KOTTAYAM P.O. BY ADV. SRI.T.K.VENUGOPALAN FOR R1 BY ADV. SRI.SHIBU JOSEPH FOR R1 BY ADV. SRI.M.T.SURESHKUMAR FOR R3 BY ADV. SRI.R.RANJITH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## MACA.No. 262 of 2010 (E) ## ORDER ON I.A.NO.317/2009 DISMISSED. 17.7.2012. SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P. A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------M.A.C.A.No.262 Of 2010 ---------------------Dated this the 17[th] day of July, 2012.** ## **J U D G M E N T** The 2[nd] respondent National Insurance Company is the appellant. The appeal is directed against the award in O.P.(MV). No.1632/1999 on the file of the M.A.C.T, Pathanamthitta. The Tribunal, by the impugned award, allowed the claim in part allowing the claimant to recover a sum of Rs.57,300/- as compensation with 7.5% interest. The parties hereinafter are referred to as the claimant and respondents as arrayed in the claim petition. 2. The Insurance Company contested the claim petition on merits. The Tribunal found that the accident was occurred due to the rash and negligent driving of the motor cycle by the additional 3[rd] respondent. The 1[st] respondent is the owner of the vehicle. Ext.B1 is the comprehensive policy. The Insurance Company inter alia contended that on the date of the accident the rider of the motor cycle, the additional 3[rd] respondent was having no driving licence and thereby the 1[st] respondent insured **::2::** ## **M.A.C.A.No.262/2010** violated the policy conditions. From the materials available, the Tribunal found that on the date of the accident, the additional 3[rd] respondent, the rider of the offending vehicle, was having no valid driving licence. The Tribunal further held that the law is well settled that if the insurer succeeded in proving the breach of terms of policy on the part of the owner of the vehicle, the insurer can recover the amount paid in favour of the third party in order to satisfy the award from the owner/insured of the vehicle. The Tribunal held that the 1[st] respondent and the additional 3[rd] respondent are jointly and severally liable to compensate the claimant and that being the insurer of the offending vehicle the 2[nd] respondent Insurance Company is liable to satisfy the award in favour of the petitioner at the first instance since the claimant is a third party. The Tribunal further held that since there is breach of policy conditions on the part of the 1[st] respondent owner, the 2[nd] respondent Insurance Company is having liberty to recover the amount from the 1[st] respondent owner. **::3::** ## **M.A.C.A.No.262/2010** 3. The learned counsel for the appellant contended before this Court that the direction issued by the Tribunal directing the Insurance Company to satisfy the award in favour of the claimant at the first instance and then to recover the compensation amount from the 1[st] respondent owner is not legally sustainable. According to the learned counsel the Insurance Company is having no liability in the of this nature and therefore, the Tribunal should have exonerated the company from making payment to the claimant. The learned counsel also relied on the decisions reported in _**National Insurance Company v. Vidyadhar Mahariwala and others**_ (AIR 2009 SC 208) and _**Ishwar Chandra and others v. Oriental Insurance Co.Ltd. and others**_ (2007(10) SCC 650). 4. The Apex Court in _**National Insurance Company Ltd. v. Swaran Singh**_ (2004(1) KLT 781(SC)) considered a similar issue. The relevant extract in paragraph 102 (iii) is quoted below: _“(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the_ **::4::** ## **M.A.C.A.No.262/2010** _driver, as contained in sub-s.(2)(a)(ii) of S.149, have to be proved to have been committed by the insured for avoiding liability by the insurer. 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 care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time”._ The principle laid down in the above said decision was followed by the Supreme Court in _**Kusum Lata and others v. Satbir and others**_ (AIR 2011 SC 1234). The Apex Court held that 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 licensed driver or one who was not disqualified to drive at the relevant time. The Supreme Court held that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are **::5::** ## **M.A.C.A.No.262/2010** not in themselves defences available to the insurer against either the insured or the third parties. Regarding the liability, the Insurance Company is liable to satisfy the award in favour of third party at the first instance and then to recover the award amount from the owner or driver of the vehicle even where the insurer could establish breach of terms of policy on the part of the owner of the vehicle. The Supreme Court held as follows: _“The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of assured. If this interpretation is not given to the beneficent provisions can be given effect to Sub.s.(7) of S.149 of the Act, to which pointed attention of the court has been drawn by learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-s.(1) thereof”._ **::6::** ## **M.A.C.A.No.262/2010** 5. In the light of the principles laid down in the above referred cases, I fully agree with the findings and directions recorded by the Tribunal. In the result, the appeal fails and accordingly dismissed. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-