IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 MACA.No. 2136 of 2006(A) ----------------------- OPMV.766/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL,NORTH PARAVUR .................... APPELLANT/THIRD RESPONDENT: -------------------------------------------- NATIONAL INSURANCE COMPANY LTD., P.B.NO.25, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: CLAIMANT AND R1 AND 2: --------------------------------------------------- 1. ANTONY K.O., S/O.OUSEPHKUTTY, KORAMANGALATH HOUSE, OLANADU KARA, ALANGADU VILLAGE, VARAPUZHA POST. 2. BENZEER K.B., S/O. BEERAVU, KARUVELY HOUSE, MANNAMTHURUTH, VARAPUZHA. 3. K.B. BEERAVU, KARUVELY HOUSE, MANNAMTHURUTH, VARAPUZHA. BY ADV. SRI.PREMCHAND R.NAIR FOR R1 SMT.C.A.RAKHI ANTONY FOR R1 SRI.G.BALAMURALEEDHARAN (PARAVUR) FOR R2 & 3 SRI.MATHEWS V.JACOB (PARAVUR) FOR R2 & 3 SRI.N.T.NANDAKUMAR (PARAVUR) FOR R2 & 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2136 OF 2006 = = = = = = = = = = = = = = = Dated this the 17th day of September, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV)766/01. The claimant had sustained injuries in a road accident and he has been awarded a compensation of Rs.93,030/- and the insurance company is directed to deposit the amount. The insurance company had raised a contention that the vehicle was driven by the person who was not holding a valid driving licence to drive the vehicle involved in the accident and therefore there is breach of policy conditions and so the insurance company is entitled to get reimbursement from the owner. On the other hand, the learned counsel for the owner and driver would contend that the Tribunal was right in holding that there was requisite licence and therefore there is no question of any reimbursement. 2. Few facts regarding the vehicle is necessary for a proper disposal of the matter. The vehicle involved in the M.A.C.A. 2136 OF 2006 -:2:- accident is an Alwin Nissan mini lorry. Admittedly it is only having a unladen weight of 2,145 kgs. and admittedly the driver of the said vehicle had only the licence to drive a light motor vehicle. The Tribunal held that since the vehicle is having a unladen weight of below 7500 kgs. it comes squarely within the ambit of definition of light motor vehicle under the M.V. Act and therefore the licence to drive a light motor vehicle is a proper licence for the purpose of this case. Learned counsel for the owner and driver had relied on a decision of the Apex Court reported in National Insurance Co. Ltd. v. Annappa Irappa Nesaria (AIR 2008 ACJ 721) wherein the Supreme Court was considering the question of a vehicle which was used for commercial purposes and held that since the vehicle is below 7500 kg. and as there was no column with respect to a transport vehicle at that point of time, came to the conclusion that it can be said to be a valid licence. In another decision rendered by the Apex Court at a later point of time that is in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20(SC) the Apex Court Court considered the earlier decision and also the points M.A.C.A. 2136 OF 2006 -:3:- involved in that case. It was a case where the vehicle involved was an auto rickshaw delivery van. It was used for commercial purposes. The Apex Court held that definition of light motor vehicle would not include a light transport vehicle and therefore held that the licence to drive a light motor vehicle is not sufficient to hold that there is due licence to drive a light transport vehicle. Applying the said dictum to the facts of the present case admittedly the vehicle involved in this case is a Alwin Nissan mini lorry used for transporting goods and therefore it is a transport vehicle. In the light of the definition of the transport vehicle it has to be stated it will not come within the purview of a light motor vehicle. Transport vehicle is defined under Section 2(47) of the M.V.Act. A transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Admittedly, the vehicle involved in this case is a vehicle used as goods carriage. Therefore it comes within the ambit of the definition of transport vehicle and in order to have an effective valid driving licence there must be licence to drive a transport vehicle. So I am not in agreement with the finding of the Claims Tribunal that M.A.C.A. 2136 OF 2006 -:4:- licence to drive a light motor vehicle is sufficient to drive a light transport vehicle. 3. Then the next point that was argued before me was that there is no evidence to show that there is fundamental breach of policy condition. In the decision reported in Abbas v. National Insurance Co. Ltd. (2007 (1) ACC 459), the learned Judge of this Court had considered this question. It was also a case where the driver did not have a valid licence to drive the goods carriage. The Court held that when the owner consciously authorize the driver to drive the vehicle after having the information that the driver did not possess necessary licence, it amounts to violation of the policy condition. 4. Here, when a transport vehicle is put into use by an owner of the vehicle it is incumbent upon the owner of the vehicle to find out whether the person authorised to drive the vehicle is having a valid licence to drive such vehicle. He cannot shirk the responsibility and say that nothing need be verified to permit a driver to drive a transport vehicle. Since public interest and public safety are involved in such cases there is legitimate duty cast on him. Therefore I hold that the M.A.C.A. 2136 OF 2006 -:5:- insurance company has succeeded in proving the fundamental breach of policy condition as well. 5. In the light of the decision in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) as the injured is a third party the insurance company is liable to pay the amount to the third party and get it reimbursed from the owner of the vehicle. Therefore as far as the claimant is concerned, he is entitled to realise the compensation from the owner but the owner has a liability to reimburse the amount to the insurance company on account of the breach of policy condition. Therefore the award under challenge is modified to the effect that the insurance company shall deposit the amount due to the claimant as ordered by the Tribunal and on deposit of the same to proceed against the owner of the vehicle for recovering the said amount by way of execution. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-