M.A.C.A.No.2093 of 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934 MACA.No. 2093 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV.1322/2006 of M.A.C.T OTTAPPALAM DATED 10-06-2010 APPELLANT/1ST REPONDENT: --------- V.M.KUNJUMON, S/O.MOIDEENKUTTY,PUTHIYA VEETTIL HOUSE SABHAYIL PARAMBU,KARAKKAD,GURUVAYOOR THRISSUR DISTRICT. BY ADVS.SRI.N.P.SAMUEL SRI.DILIP J. AKKARA SRI.B.K.GOPALAKRISHNAN RESPONDENTS/APPELLANT & RESPONDENTS 2 & 3: ---------- 1. *MEERA D/O.ARIYADATH SANKARANKUTTY,VENGATTUPARAMBIL HOUSE OTTAPPALAM TALUK,CHALISSERY AMSOM,ALIKKARA DESOM CHALISSERY PO,PALAKKAD DISTRICT-679 536 **(DELETED)** 2. P.G.BABURAJ, S/O.GOPALAN,POOKKAYIL HOUSE,MALLISSERY PARAMBU MUTHUVATTOR PO,GURUVAYOOR,THRISSUR DIST PIN 680 101. 3. NATIONAL INSURANCE COMPANY LTD, BRANCH OFFICE,IST FLOOR,SREE NARAYANAN TRUST BUILDING,OPPOSITE TOWNSHIP BUS STAND,EAST NADA GURUVAYOOR ,TSR.101 *THE NAME AND ADDRESS OF 1ST RES. IS DELETED FROM PARTY *The name and address of the lst respondent is deleted from the party array at the risk of the appellant as per order dtd. 5/4/2011 in I.A.No.987/2011. R3 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 28/1/2013 ORDER ON I.A.NO.703/2011 IN MACA.NO.2093/2010 --------Dismissed Sd/HARUN-UL-RASHID, JUDGE. TRUE COPY P.S. TO JUDGE ## **HARUN-UL-RASHID,J.** **------------------------M.A.C.A.NO.2093 OF 2010 ------------------------DATED THIS THE 28TH DAY OF JANUARY, 2013** ## **JUDGMENT** The lst respondent in O.P.(MV).No.1322/2006 on the file of the Motor Accidents Claimants Tribunal, Ottapalam is the appellant. The appeal is directed against the award dated 10/6/2010 passed in the said original petition. The lst respondent herein is the claimant. The appellant herein is the owner of the vehicle and the 2[nd] respondent is the driver. The claim petition was filed claiming compensation for the injury sustained by the claimant in the motor vehicle accident occurred on 28/6/2005. 2. The evidence consists of oral testimony of RW1, Exts. A1 to A7, B1 and X1. On the basis of the evidence on record, the Tribunal held that the accident occurred due to the negligent act of the 2[nd] respondent. The Tribunal allowed the claimant to recover and realise a sum of `18,160/- with 8% interest from the date of petition till the date of realisation and costs of `1,000/- from respondents 1 to 3. **-2-** ## **M.A.C.A.No.2093/2010** The Tribunal further directed the 3[rd] respondent-Insurance Company to deposit the amount awarded within one month and can reimburse the amount from respondents 1 and 2. Aggrieved by the direction allowing the Insurance Company to reimburse the award amount from respondents 1 and 2 this appeal is filed. 3. The Insurance Company contended that the 2[nd] respondent driver was not holding valid badge at the time of the accident. RW1, who is the Assistant Motor Vehicle Inspector, testified before the Tribunal that on the date of the accident the 2[nd] respondent was not holding a valid badge. He has produced Ext.X1 document, which is the copy of the driving licence particulars. Ext.B1 is the copy of the driving licence. Ext.B1 would show that the 2[nd] respondent was holding valid driving licence at the time of the accident. Ext.X1 particulars would show that the validity of the badge expired on 4/2/2004 and renewed only on 30/6/2005. The date of accident was on 28/6/2005. The Tribunal held that the appellant had violated the policy conditions **-3-** ## **M.A.C.A.No.2093/2010** by permitting the 2[nd] respondent to drive the vehicle without valid driving licence. The Tribunal also held that the 3[rd] respondent shall deposit the amount initially and can reimburse the amount from respondents 1 and 2. It is a fact that the driver was holding valid licence at the time of accident. Ext.X1 particulars of driving licence would show that the driver was not holding valid badge at the time of the accident. The validity of the badge which he was holding has expired on 4/2/2004 and the same was renewed with effect from 30/6/2005. The only violation pointed out is that the driver was not holding valid badge at the time of the accident. He failed to renew the badge which he was holding prior to the date of accident. 4. In the decision reported in **National Insurance Company v.Swaran Singh (2004 (1) KLT 781 (SC))** the Apex Court held as follows: _“Even where 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_ **-4-** ## **M.A.C.A.No.2093/2010** _driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the 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 Section 149 (2) of the Act.”_ The said decision was followed by this Court in **New India Assurance Co. Ltd. v. Balakrishnan (2011 (4) KLT 412).** In paragraph 18 of the said decision this Court held as follows: “..... _The law declared by Swaran Singh (supra), it is evident, states clearly that it is not enough if the violation and contumacious breach are proved. An insurer will not be allowed to avoid its liability towards insured merely on proof of the violation and breach. It is up to the insurer to show that the breach is so fundamental that it is found to have contributed to the cause of the accident. The rule of main purpose and fundamental breach is to be imported to ascertain whether the breach was such that it can be said to have contributed to the cause of the accident. Any liability under Section 166 of the M.V. Act is built only on proof of negligence on the part of the driver/owner. The contribution to the cause of the accident cannot certainly be said to refer to that_ **-5-** ## **M.A.C.A.No.2093/2010** _breach of duty under the law of torts. It has to be established that the breach of the condition of the policy was responsible or had contributed to the cause of the accident. That evidently is the mandate of the stipulation in paragraph 102(vi). We understand paragraph 102(vi) of Swaran Singh (supra) to mean that violation is to be proved. In addition contumacious breach has to be proved. Further it has got to be proved that the alleged breach of the policy condition was so fundamental and the same had contributed to the cause of the accident. We are unable to agree that an insurer can avoid liability to the insured merely on proof of violation or on proof of the breach. It has got to be proved further that the breach was so fundamental and the breach had caused or contributed to the cause of the accidents.”_ _5._ It is upto the insurer to show that the breach is so fundamental that it is found to have contributed to the cause of the accident. It is not enough if the violation and contumacious breach are proved. In this case the driver was holding a valid driving licence. He was also the holder of a valid badge. The only thing is that on the date of the accident there was no renewal of the badge. The Insurance Company shall further prove that the breach of the **-6-** ## **M.A.C.A.No.2093/2010** condition of the policy had contributed to the cause of the accident. In this case it is not proved that the alleged breach of the policy condition is fundamental and the same had contributed to the cause of the accident. In these circumstances, the direction issued by the Tribunal to recover the award amount from respondents 1and 2 cannot stand. In the result, the appeal is allowed. The award under challenge is set aside to the extent it direct that the Insurance Company is entitled to get reimbursement of the award amount from respondents 1 and 2. In all other respects, the award passed by the Tribunal stands. **Sd/HARUN-UL-RASHID, JUDGE.** **kcv.**