IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 MFA.No. 359 of 2003() ------------------------------- OPMV.11/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT: 3RD RESPONDENT: -------------------- THE NEW INDIA ASSURANCE CO. LTD., M.A.LANE, T.B.ROAD, PALAKKAD, REPRESENTED BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM. BY ADV. SRI.N.S.MOHAMMED USMAN RESPONDENTS: PETITIONER & RESPONDENTS 1, 2 & 4: ------------------------ 1. K.C.HARIDAS, S/O. CHINNAN, AGED 30 YEARS, KANAYAMPADAM VEEDU, KALLOOR P.O., KERALASSERY, PALAKKAD DISTRICT. 2. PRABHATH, S/O. SANKARANARAYANAN, AGED 27 YEARS, METTUTHERU, SEKHARIPURAM, PALAKKAD. 3. M.MOHAMMED KHANI, S/O. MUTHU RAWTHER, PUDUPALLI STREET, NOORANI, PALAKKAD. 4. VASUDEVAN NAIR, S/O. KRISHNAN NAIR, SONA NIVAS, VALIGAPADAM, PUTHUR, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH FOR R3 SRI.T.C.SURESH MENON SRI.SERGI JOSEPH THOMAS FOR R2 SRI.BINOY VASUDEVAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.NO.359/2003 ORDER ON CMP. NO.1803/2003 IN MFA. NO.359/2003 DISMISSED 21.05.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 359 OF 2003 = = = = = = = = = = = = = = = Dated this the 21st day of May 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Palakkad in OP(MV) 11/95. By the said award the Court below granted a compensation of Rs.32,142/-. A perusal of the memorandum of appeal would reveal that two contentions are mainly raised in this case regarding the liability. It is contended by the insurance company that the driver did not have a valid driving licence at the time of the accident and it is also stated in the memorandum of appeal that he was not having a valid badge and therefore the Court below had erred in fixing the liability on the insurance company. 2. The learned counsel had referred to a decision of this Court reported in Govindankutty Nair v.Gopalakrishnan (2000 (1) KLT 224) where the Division Bench of this Court held that the requirement of a driver's badge is necessary to drive a transport vehicle and if the driver is not having a badge at the time of the accident insurance company is exonerated from its liability. Another Division Bench in the decision reported in Ramachandran v. Unnikrishnan (2006 (2) KLT SN 15) held that mere absence of a badge to drive a commercial MFA 359 of 2003 -2- vehicle is not sufficient but it must be proved that it was the reason for the accident then only the insurance company can get exonerated from the liability for violation of policy conditions. Seeing these two different views again the matter was placed before the Division Bench of this Court and in the decision reported in P.T. Moidu v. Oriental Insurance Co. Ltd. ( 2007 (4) KHC 385) this Court held that, “We are of the opinion that the insurance company cannot be exonerated in indemnifying the owner. Merely because driver of the vehicle who was duly licensed was not having a badge will not enable the insurance company to shirk its liability as per Section 149 of the Motor Vehicles Act and insurance company also failed to prove that insured has committed a fundamental breach of the policy conditions resulting in the accident.” 3. At the out set I may like to state that the written statement extracted really does not show any specific pleadings regarding the licence or a valid badge. Even if it is taken for argument sake then also there must be sufficient evidence to show that the absence of a badge has caused the accident. There are positively no materials available to prove the said factor. Therefore relying upon the decision of this Court MFA 359 of 2003 -3- referred to above and as there is no evidence to prove that the absence of the badge was the root cause for the accident one cannot exonerate the insurance company from the liability. 4. So far as the driving licence is concerned it is a settled position of law that driving licence is a must. But in this case in paragraph 12 of the award the Claims Tribunal has specifically stated that the copy of the driving licence and the perusal of the licence register would establish that the driver was having a valid driving licence. So the contention of the insurance company that the person was driving the vehicle without a valid licence also cannot be accepted. When it is so one cannot hold that the Court below has erred in directing the insurance company to pay the compensation. I had also perused the award for the purpose of ascertaining the correctness of the quantum awarded and it does not appear to be on the higher side. Therefore the MFA is dismissed. No costs. M.N. KRISHNAN, JUDGE. ul/- MFA 359 of 2003 -4- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No.359 OF 2003 = = = = = = = = = = = J U D G M E N T 21st May, 2008.