IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 MACA.No. 2091 of 2007() ----------------------- OPMV.1014/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD APPELLANT/3RD RESPONDENT -------------------------------------- THE NEW INDIA ASSURANCE CO. LTD., THANNIKKAL BUILDING, MAIN ROAD, OTTAPALLAM. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENTS/PETITIONER/1ST AND 2ND RESPONDENT ------------------------------------------------ 1. CHARLI, S/O MYCLE, RESIDING AT PALLIKODATHANOOR, PAZHANIYARPALAYAM P.O., KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT. 2. KALADHARAN, S/O PONNUCHAMI, RESIDING AT 7/544, PAZHANIYARPALAYAM P.O., KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT. 3. GEORGE PAUL GERI, S/O JOSEPH, RESIDING AT NEAR WATER TANK, PAZHANIYARPALAYAM P.O., KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.JACOB SEBASTIAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 2091/07 ORDER ON IA No. 2686/07 IN MACA No.2091/07 DISMISSED 12.11.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 2091 OF 2007 --------------------------------- Dated this the 12th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Palakkad in O.P.(MV) No.1014/2000. The claimant sustained injuries in a road accident and the Tribunal awarded compensation and fixed the liability on the Insurance Company. The Insurance Company has come up in appeal challenging the said finding as well as some clerical mistakes that had taken place in the calculation. Let me first decide about driving licence. The Tribunal in para 15 of the award held that the driver did not produce the driving licence with badge. But the finding of the Tribunal that it had not produced policy showing violation of the terms and conditions is not correct. I feel in all the policies which are issued by the Insurance Company, there are clauses dealing with the authority to drive the vehicle only by a licensed driver. But the mere absence of the licence alone is not sufficient for totally exonerating the Insurer from the liability. In the decision in National Insurance Co. Ltd. v. Swaran Singh [2004(1) KLT 781 (Standing Counsel)], while summarising the para 102(iii) and (vi) the Apex Court held that “To avoid its liability towards M.A.C.A. No. 2091/2007 -2- insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” It is further held that it is also the duty of the Insurance Company to prove 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. The matter has not been considered in that angle. The driver has entered appearance before this Court if he has got a licence he can produce it before the court. Therefore the award under challenge is set aside, so far as it relates the inter se liability between the insurer and insured. The parties are permitted to produce oral as well as documentary evidence with respect to their contentions and the Tribunal is directed to dispose of the matter in accordance with law. The parties are directed to appear before the Tribunal on 20.12.2008. M.N. KRISHNAN,JUDGE vkm