The Principal, Najath Islamic Centre, Peruvallur P.O., Malappuram District v. Mohamed Shahal (Minor) through his mother Sumayya; Basheer K.; United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936** ## **MACA.No. 51 of 2014 ()** **----------------------OP(MAC).NO. 443/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,TIRUR** **-----------------------** ## **APPELLANT/2ND RESPONDENT:** ## **-----------------------------------------------** **THE PRINCIPAL, NAJATH ISLAMIC CENTRE,PERUVALLUR P.O, MALAPPURAM DISTRICT.** **BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH** ## **RESPONDENTS/PETITIONER & 1ST & 3RD RESPONDENTS:** **--------------------------------------------------------------------------------------** **1. MOHAMED SHAHAL (MINOR), REPRESENTED BY MOTHER-SUMAYYA,MANITHODIKA HOUSE, KOLLAMCHINA P.O,PARAMBILPEEDIKA, MALAPPURAM DISTRICT- 676 315** **2. BASHEER K., S/O.MUHAMMEDKUTTY, THEKEKANDI HOUSE, PERUVALLUR P.O., MALAPPURAM DISTRICT -673 628** **3. THE UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE,THAZHEPALAM,TIRUR, MALAPPURAM DISTRICT,PIN -676 101** **R3 BY ADV. SRI.A.A.MOHAMMED NAZIR SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **M.A.C.A.NO.51/2014** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A COPY OF THE DRIVING LICENCE OF THE 2ND RESPONDENT DULY ATTESTED BY A NOTARY PUBLIC. ANNEX B COPY OF THE LICENCE PARTICULARS ISSUED TO THE 2ND RESPONDENT BY THE REGIONAL TRANSPORT OFFICER, MALAPPURAM DATED 19/10/2013.** ## **RESPONDENT'S ANNEXURES: NIL** **TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **BABU MATHEW P. JOSEPH, J.** **- - - - - - - - - - - - - - - - - M.A.C.A.No.51 of 2014** **- - - - - - - - - - - - - - - -** Dated this the 11[th] day of April, 2014 ## **J U D G M E N T** The first respondent sustained injuries in a motor accident that occurred on 14-12-2010 involving a bus driven by the second respondent, owned by the appellant and insured with the third respondent. The first respondent filed a petition, through his mother, claiming compensation on account of the injuries sustained in the accident before the Motor Accidents Claims Tribunal, Tirur. The learned Tribunal, after considering the matter, found that the accident had occurred due to the rash and negligent driving of the bus by the second respondent and awarded a total compensation of ` 62,700/- under various heads. The third respondent was directed to pay the amount. The third respondent was also permitted to recover the amount from the appellant for the reason that the second respondent was not holding a valid driving licence for driving the bus at the time of accident. Challenging the permission granted to the third **M.A.C.A.No.51 of 2014** **-2-** respondent to recover the amount from the appellant, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. In the nature of the judgment being passed in this case, no notice need be issued to the respondents 1 and 2. 3. Learned counsel for the appellant submits that the appellant was holding a valid driving licence for driving the bus at the time of accident. He was also possessing a valid badge at the time of accident. In order to substantiate them, the appellant has produced copies of the driving licence and the driving licence particulars of the second respondent. Neither the driving licence nor the driving licence particulars of the second respondent so produced do not establish that he was holding a valid driving licence or badge for driving the bus at the time of accident. Therefore, the submissions so made by the learned counsel for the appellant are liable to be rejected and hence, rejected. ## **M.A.C.A.No.51 of 2014** **-3-** 4. Whether the third respondent Insurance Company can be permitted to recover the amount from the appellant as directed by the Tribunal is the question to be considered. The Tribunal did not enter a finding in the award that the absence of driving licence and badge for the second respondent had contributed to the cause of the accident. The third respondent had not even attempted to prove that the absence of driving licence and badge had contributed to the cause of the accident. In the premise of these facts, the question has to be answered. 5. The Honourable Supreme Court considered the consequence of the absence of a valid driving licence for the driver in **National Insurance Co. Ltd. v. Swaran Singh [2004(1) KLT 781(SC)].** The law laid down by the Honourable Supreme Court 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 condition regarding holding of a valid ## **M.A.C.A.No.51 of 2014** **-4-** 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.” In the light of this ruling, unless the Insurance Company is able to establish the fact that the absence of driving licence has contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured of the vehicle. In this case, as already found, the Insurance Company had not proved that fact before the Tribunal and the Tribunal had not entered such a finding in the award. Therefore, the third respondent Insurance Company cannot avoid their liability to indemnify the appellant or to pay the compensation to the first respondent on the ## **M.A.C.A.No.51 of 2014** **-5-** ground of absence of driving licence. They are also not entitled to the benefit of the Proviso to Sub-section (4) of Section 149 of the Motor Vehicles Act providing for recovery of the amount paid to the claimant from the insured. 6. This Court considered the consequence of the absence of badge for the driver in **Kuruvila v. Jijo Joseph (2013 (4) KLT 700)** . Paragraph 38 of this judgment contains the law laid down in respect of the matter which reads 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 ## **M.A.C.A.No.51 of 2014** **-6-** 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.” Therefore, unless the Insurance Company is able to establish that the absence of badge has contributed to the cause of the accident, they cannot avoid their liability to indemnify the insured based on the Insurance Policy. Since such a fact had not been established by the third respondent and the Tribunal had not entered such a finding in the award, the third respondent is liable to indemnify the insured in this case. Therefore, they cannot recover the amount as permitted by the Tribunal from the appellant. In the result, it is declared that the third respondent Insurance Company is not entitled to recover the amount paid by them to the claimant from the appellant. They are liable to indemnify the appellant **-7-** ## **M.A.C.A.No.51 of 2014** based on the Insurance Policy. The permission granted by the Tribunal to recover the amount from the appellant is set aside. This appeal is allowed as above. Sd/- **BABU MATHEW P. JOSEPH, JUDGE** lsn //True Copy// P. A. to Judge