IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 MACA.No. 265 of 2004() --------------------------------- (AGAINST THE AWARD DATED 18.11.2000 IN OPMV.1528/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ) .................... APPELLANT(S): 4TH RESPONDENT IN OP (MV): ------------------------------------------------------------------ M.R.RAJENDRAN, S/O.RAGHAVAN, RESIDING AT METTAKOTTA HOUSE, KIZHAKKANCHERRY, ALATHUR, PALAKKAD. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): CLAIMANT AND RESPONDENTS 1 TO 3: ---------------------------------------------------------------------------------- 1. LAILA RAMAKRISHNAN, W/O.RAMAKRISHNAN, RESIDING AT NEDISSERY HOUSE, CHEMBOOTHRA, PATTIKKAD.P.O., THRISSUR. (DELETED) 2. AISHA KRISHNAN, D/O.LATE RAMAKRISHNAN, RESIDING AT NEDISSERY HOUSE, CHEMBOOTHRA, PATTIKKAD.P.O., THRISSUR.(DELETED) 3. ANEESH, S/O.LATE RAMAKRISHNAN, RESIDING AT NEDISSERY HOUSE, CHEMBOOTHRA, PATTIKKAD.P.O., THRISSUR.(DELETED) 4. RAGHAVAN, METTAKOTTA HOUSE, KIZHAKKANCHERRY, PALAKKAD. (DELETED) 5. JAYAKRISHNAN.T.V., SASTHA NIVAS, THIRUVARA, KIZHKKACHERRY, PALAKKAD. (DELETED) 6. NATIONAL INSURANCE COMPANY LIMITED, PALAKKAD BRANCH, FORT MAIDAN, PALAKKAD. (RESPONDENTS 1 TO 5 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 11.3.2004 IN I.A.787/2004) R6 BY ADV. SRI.RAJAN P.KALIYATH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ------------------------------------------ M.A.C.A. NO. 265 OF 2004 ------------------------------------------ Dated this the 26th day of , 2009 JUDGMENT Joseph, J. Appellant is the 4th respondent in O.P.(MV) No.1528 of 1996. The said petition was a petition filed under Section 166 of the Motor Vehicles Act by the wife and children of one deceased Ramakrishnan. According to the claimants, late Ramakrishnan while walking on the side of the Thrissur-Palakkad NH Road was knocked down by a tempo which is driven by the 2nd respondent in the petition. He succumbed to the injuries. The 3rd respondent Insurance Company which had issued the policy has raised a contention that the appellant is the owner of the vehicle. Consequently, the appellant came to be impleaded as the 4th respondent. It is noted in the award that he remained exparte. Finding that there was negligence on the part of the 2nd respondent driver, the Tribunal proceeded to compute the compensation as MACA 265/2004 -2- Rs.1,96,000/- and it was ordered that the amount shall be paid with interest at 12% by the 3rd respondent Insurance Company which was given liberty to recover the amount from the appellant. It is being aggrieved by this award that this appeal is filed. 2. We heard Sri.V.V.Surendran, learned counsel for the appellant and Sri.Rajan P.Kalliath learned counsel appearing on behalf of the Insurance Company. Learned counsel for the appellant would contend as follows-- The Tribunal erred in permitting the Insurance Company to recover the amount from the appellant. He would submit that though made a party to the proceedings he was made exparte. He had no notice in the original proceedings. He also did not have notice in the execution proceedings. He came to know about the award when revenue recovery steps were taken apparently at the instance of the 3rd respondent Insurance Company which had paid the amount in terms MACA 265/2004 -3- of the award. The Tribunal found that though there is a valid insurance policy there is violation of the terms of the policy in so far as on the date of accident took place namely, on 22.5.1996, the second respondent driver was not possessed of a valid licence. It was found that the licence was valid from 10.3.1993 to 22.3.1996, and thereafter, it was renewed only on 22.11.1996. Thus, as on the date of the accident there was no valid licence. Learned counsel for the appellant would submit that the finding and direction of the Tribunal are unsustainable for the reason that while it may be true that on 22.5.1996 the date on which the accident took place there was no licence it was renewed on 22.11.1996. He would contend that the Tribunal has to find it if it is the fundamental cause which contributed to the accident. He placed reliance on the judgment of the Apex Court reported in National Insurance Co. Ltd. Vs. Swaran Singh {2004 (1) KLT 781 (SC} wherein the Apex Court interalia held as MACA 265/2004 -4- follows: “The person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. Apart from the above, we do not intend to lay down anything further, i.e., degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer, etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule can therefore be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance on the part of the insured by discharging its burden of proof. The Tribunal, there cannot be any doubt must arrive at a finding on the basis of the materials available on records. The insurance companies are, however, with a view to avoid their liability must not only establish the available defence (s) raised in the said MACA 265/2004 -5- proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them. The court cannot lay down any criteria as to how said burden would be discharged inasmuch as the same would depend upon the facts and circumstances of each case. 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. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under S.149 (2) of the Act. The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.” 3. He points out that in Malla Prakasarao Vs. Malla Janaki and Others {I (2006) ACC 300 (SC) } which is a judgment of three leaned Judges, the Apex Court held as follows: MACA 265/2004 -6- “ It is not disputed that the driving licence of the driver of the vehicle had expired on 20.11.1982 and the driver did not apply for renewal within thirty days of the expiry of the said licence, as required under Section 11 of the Motor Vehicles Act, 1929. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of the contract, the Insurance Company has no liability to pay any compensation where an accident takes place by a vehicle, driven by a driver without a driving licence. In that view of the matter, we do not find any merit in the appeal.” 4. Still later in Ishwar Chandra and Others Vs. Oriental Insurance Co.Ltd. and Others {II (2007) ACC 63 (SC) } a Bench of two Judges of the Apex Court reiterated the same principle. Therein the accident took place on 28.4.1995. It was found that renewal application was not filed on the said day. It was held that the licence remains valid for 30 days from the date of its expiry and if any application is filed after the expiry of 30 days the same would be renewed from the date of renewal and dismissed the appeal. 5. Still later another Bench of the Apex Court MACA 265/2004 -7- in National Insurance Co.Ltd. Vs. Vidhyadhar Mahariwala and Others { IV(2008) ACC 714 (SC)} has proceeded to take the same view. Therein the accident took place on 11.6.2004. Driver's licence was initially valid from 15.12.1997 to 14.12.2000 and thereafter from 29.12.2000 to 14.12.2003. It was again renewed from 16.5.2005 to 15.5.2008. The Court took the view that the Insurance Company would not be liable. Thus, the Apex Court after referring to National Insurance Co. Ltd. Vs. Swaran Singh {2004 (1) KLT 781 (SC} (supra) and other case law has taken the view that the Insurance Company cannot be held liable if the licence is not renewed within a period of 30 days from the date of its expiry. Though apparently when the appeal was filed the matter was governed by the judgment of this Court, in the light of the later decisions of the Apex Court we are of the view that there cannot be any merit in the contention of the appellant that the Insurance Company MACA 265/2004 -8- should not have been given liberty to recover the amount from the appellant. It is to be noted that this is a case where there is a finding that the accident occurred on account of the negligent driving of the vehicle by the 2nd respondent and it is not as if some other reasons like vis major or falling of tree which contributed to the accident. In the light of the above discussion we would think that there is no merit in the appeal and accordingly it is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS