IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 MACA.No. 270 of 2005() ------------------------------------ OPMV.607/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): 3RD RESPONDENT ----------------------- THE MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, THALIPARAMBA NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S): RESPONDENTS 1 & 2 -------------------------- 1. SHAHUL HAMEED, S/O.KUNNARIATH ABDUL RAHIMAN, KOTTAKKAL HOUSE, MELPARAMBA P.O., KASARAGOD TALUK. 2. HASSANKUTTY, S/O.UMMER, KATTAKKAL HOUSE, KALNAD P.O., CHEMNAD, KASARAGOD TALUK. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 270 OF 2005 --------------------------------- Dated this the 2nd day of December, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Kasaragode in O.P.(MV) No.607/2000. A minor girl, aged 12 years, sustained injuries in a road accident. While the claimant was walking along the side of the road an autorickshaw bearing registration No. KL 14B/7598 driven by the 2nd respondent in the claim petition, came in a rash and negligent manner and hit on the minor resulting in injuries. The tribunal awarded a compensation of Rs. 21,000/-. The Insurance Company contended that the driver did not possess a valid driving licence for driving an autorickshaw and therefore there is breach committed by the owner of the policy conditions and so the Insurance Company is not bound to indemnify the owner. 2. The tribunal relying upon the Apex Court decision reported in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781], held that the 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 is not proved by the M.A.C.A. No. 270/2005 -2- Insurance Company and therefore the Insurance Company is bound to pay the amount. The learned counsel for the Insurance Company contends before me that the driver was born on 16.11.1980 and the accident took place on 10.4.2000 and so on the date of the accident the driver had not completed the age of 20 years. Section 4(2) of the Motor Vehicles Act envisages a situation “subject to the provisions of Section 18, no person under the age of 20 years shall drive a transport vehicle in any public place”. So there is an absolute statutory bar enabling the driver to obtain a licence to drive a transport vehicle. The Supreme Court has considered question of autorickshaw whether it is a transport vehicle or not. Under the definition in the Motor Vehicles Act, a light motor vehicle means a vehicle which has got unladen weight of less than 7500 kgms and therefore the definition may take in an autorickshaw as well. But a reference to Section 2(47) of the Motor Vehicels Act defines a transport vehicle. A transport vehicle means a public service vehicle. Autoricksha is a vehicle which is intended to carry public and therefore it is a public service vehicle which will come within the ambit of the definition of transport vehicle. Further in exceptional circumstances under which the insurer is bound to M.A.C.A. No. 270/2005 -3- indemnify the insured as also been held in a recent decision by the Supreme Court reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and another [2008 (3) T.A.C. 20], the Apex Court in para 13 held that : “If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerned driving licence”. Here in this case, accident had not taken place on account of any mechanical failure or other circumstances such as act of God, but has taken place only on account of a person driving the vehicle incompetent to hold a valid driving licence under the provisions of the Motor Vehicles Act. So the finding of the tribunal that the cause of accident is not so fundamental on account of the absence of a driving licence is absolutely incorrect which requires interference. Therefore I find that the Insurance Company has established regarding breach of policy conditions. Being a third party, it is desirable that the claimant is compensated by the Insurance M.A.C.A. No. 270/2005 -4- Company and it gets the right of recovery from the owner of the vehicle. Therefore the M.A.C.A is disposed of as follows: The finding of the tribunal that the Insurance Company is bound to indemnify is vacated but the Insurance Company is directed to satisfy the award to the claimant and then realise that amount on satisfaction of the award from the owner of the vehicle by execution of the very same award. The M.A.C.A is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm