Thankappan v. Gopaln and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936 MACA.No. 1885 of 2012 ------------------------- AGAINST THE AWARD IN OPMV 919/2004 of MACT, IRINJALAKUDA DATED 26-112010 ## APPELLANT/RESPONDENT 1 -------------------------------------------- THANKAPPAN, AGED 56 YEARS, S/O.KUTTAN, KUNDEPARAMBIL HOUSE CHITTISSERY, THRISSUR. BY ADV. SRI.C.DILIP ## RESPONDENTS/RESPONDENTS: ---------------------------------------------------- ## 1. GOPALAN AGED 51, S/O.AYYAPPAN, OMPULLY HOUSE POOLLAKKATTUKARA DESOM, CHITTISSERY MUKUNDAPURAM TALUK 680 301. 2. ORIENTAL INSURANCE CO.LTD., CITY HEIGHTS BUILDING, CHALAKUDY - 680 301. RR2 BY ADV. SRI.MATHEWS JACOB (SR.) RR2 BY ADV. SRI.P.JACOB MATHEW R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXTS: ANNEXURE A1: TRUE COPY OF THE LICENCE OF THE APPELLANT. RESPONDENTS' EXTS: NIL TRUE COPY P.S.TO JUDGE ks. **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = M.A.C.A. No. 1885 of 2012 = = = = = = = = = = = = = = = = = = = Dated this the 31[st] day of March, 2014** ## **JUDGMENT** The first respondent in this appeal filed O.P.(MV) No. 919 of 2004 before the Motor Accidents Claims Tribunal, Irinjalakuda, claiming compensation on account of the injuries sustained by him in a motor accident. The Tribunal, after finding negligence on the part of the appellant as the cause of the accident, awarded a total compensation of Rs.19,800/- to the first respondent with interest at the rate of 7% per annum from the date of the petition till realisation and proportionate costs. The Tribunal found that the autorikshaw involved in the accident was covered by a valid insurance policy at the time of accident. But, based on the contention raised by the second MACA 1885/2012 2 respondent Insurance Company, the Tribunal found that the appellant, who was the owner-cum-driver of that autorikshaw, was not holding a valid driving licence for driving the autorikshaw at the time of accident. Therefore, the second respondent was exonerated and directed the appellant to pay the amount found to be payable to the first respondent. Aggrieved by the finding that the appellant was not holding a valid driving licence and the direction issued to the appellant to satisfy the award, he has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Senior Counsel appearing for the second respondent. In the nature of the judgment being passed in this appeal, no notice need be issued to the first respondent. 3. Learned counsel for the appellant submits that the appellant was holding a valid driving licence and a badge for MACA 1885/2012 3 driving the autorikshaw involved in the accident at the time of accident. The appellant has produced a copy of his driving licence along with the appeal as Annexure I which shows that the appellant was issued with a licence to drive the autorikshaw and a badge on 3.1.1997. The accident in this case occurred on 9.9.2000. Annexure I does not show that the appellant was holding a valid driving licence or a badge for driving the autorikshaw on 9.9.2000. Therefore, this Court cannot accept the contention advanced by the learned counsel for the appellant that the appellant was holding both the licence and the badge for driving the autorikshaw at the time of accident. The contention of the second respondent that the appellant was not holding a driving licence and a badge at the time of accident has to be accepted. Hence, it is accepted. MACA 1885/2012 4 4. Whether the absence of a valid driving licence or a badge will absolve the liability of the second respondent to indemnify the appellant on the basis of the Insurance Policy issued in respect of the vehicle owned by the appellant is the question to be considered and answered. The Tribunal has not entered a finding that the absence of licence or badge has contributed to the cause of the accident. Moreover, the second respondent has not even made an attempt to prove that the absence of driving licence or badge has contributed to the cause of the accident. 5. The Honourable Supreme Court has considered the consequence of absence of driving licence for the driver in **National Insurance Company Ltd. v. Swaran Singh [2004(1) KLT 781 (SC)].** The summary of the law laid down by the Honourable Supreme Court in that regard contains in clause (vi) of paragraph 102 of the judgment which reads as follows: MACA 1885/2012 5 “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 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.” Therefore, unless the Insurance Company is able to prove that the absence of driving licence has contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured. Here, no such proof is available. Therefore, the Insurance Company is liable to indemnify the insured viz., the appellant. MACA 1885/2012 6 6. Section 149 of the Motor Vehicles Act does not entitle the Insurance Company to take a contention based on absence of badge in order to defend a claim for compensation. This Court had occasion to consider the consequence of absence of a badge for the driver in **Kuruvilla v. Jijo Joseph (2013(4) KLT 700).** This Court in paragraph 38 of the judgment laid down 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 MACA 1885/2012 7 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.” In the light of this ruling, unless the Insurance Company is able to prove that absence of a badge for the driver has contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured. Here, as already found, no such proof is available. Therefore, the Insurance Company is liable to indemnify the appellant. 7. In the light of these rulings, the contention of the learned Senior Counsel for the second respondent cannot be countenanced. The second respondent is liable to indemnify MACA 1885/2012 8 the appellant. The direction issued by the Tribunal to the appellant to pay the amount is set aside. The amount fixed by the Tribunal as compensation payable to the first respondent shall be paid by the second respondent. They shall deposit the amount within two months from today. This appeal is allowed as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S.TO JUDGE