IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 MACA.No. 859 of 2005() -------------------------------- OPMV.94/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/3RD RESPONDENT ---------------------------------------------- THE ORIENTAL INSURANCE CO LTD., KOTHAMANGALAM, REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT/ 1ST RESPONDENT -------------------------------------------------- K.M.EBRAHIM, S/O.MUHAMMED, KUZHIPPILLIL HOUSE, PEZHACHAPPILLY, MUVATTUPUZHA. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 859 OF 2005 = = = = = = = = = = = = = = = Dated this the 27th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)94/01. The Tribunal has awarded a compensation of Rs.22,513/- with 9% interest per annum from the date of application to the date of deposit. The Tribunal repelled the contention of the insurance company regarding its non liability on the ground that it has not been proved that the violation of the condition is so fundamental as to have contributed to the accident. The said finding has been based on the decision of the Apex Court reported in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781). A reading of paragraph 102, (iii) and (vi) would reveal 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 M.A.C.A. 859 OF 2005 -:2:- fulfilling the condition of policy regarding the use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” The Apex Court further held that, “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.” It is also laid down in that decision, “The insurance companies are, however, with a view to avoid their liability must not only establish the available defences raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the burden of proof therefor would be on them.” So unless these ingredients are proved and established when there is a policy the insurance company cannot get M.A.C.A. 859 OF 2005 -:3:- absolved from the liability to the insurer. The Tribunal applying the dictum laid down by the Apex Court in the above said decision has arrived at a finding that there is nothing to prove those facts and therefore negatived the contentions of the insurance company. As facts are not proved, there is no ground to interfere with the decision rendered by the Tribunal and therefore the MACA is dismissed. M.N. KRISHNAN, JUDGE. ul/-