IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 MACA.No. 1839 of 2009(B) ----------------------- OPMV.479/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, REPRESENTED BY ITS GENERAL MANAGER-LEGAL, SORRENTO BUILDING NO.6, IST FLOOR, LATTICE BRIDGE ROAD, ADYAR, CHENNAI-600 020. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S)PETITIONER & RESPONDENTS: --------------------------------------------------- 1. MUJEEB.A.M, S/O.SAINUDHEEN.A.N., AI-SAFA MANZIL HOUSE, MARUTHUR P.O., KARIMPULLY, AUNGALLUR, PALAKKAD DISTRICT. 2. SURESH BABU, S/O.AYYAPPAN, KALATHILPADI VEEDU, PARAKKAD, KOZHIKKOTTIRI, PATTAMBI, OTTAPALAM TALUK. 3. O.T.CHACKOCHAN, S/O.THOMAS, OLIKKAL HOUSE, ASARIKKADAVU P.O., MANNAMANGALAM (VIA), THRISSUR DISTRICT. ADV. SRI.P.JAYARAM FOR R1 SMT.T.D.RAJALAKSHMI FOR R2 SRI.R.SREEHARI FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1839 OF 2009 = = = = = = = = = = = = = = = Dated this the 8th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV)479/06. The insurer has come up in appeal challenging the finding of the Tribunal holding it liable for the amount. The question that arises for consideration was that whether the driver did have a valid driving licence. The vehicle involved in the accident was a mini lorry and the driver did have the licence to drive a light motor vehicle. It was contended that since the laden weight of the mini lorry is less than 7500 kg. it will come within the ambit of a light motor vehicle and therefore the licence to drive a light motor vehicle is a valid licence and so there is no breach of policy conditions and therefore the insurance company is bound to indemnify. The learned Tribunal relying on the decision of a Division Bench of this court reported in Prabhakaran v. James (2008 (3) KLT M.A.C.A. 1839 OF 2009 -:2:- 739) held that it is sufficient licence. Now there is a change in the law by the decision of the Hon'ble Supreme Court of India reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20(SC). It was a case involving a goods auto rickshaw. The very same contentions raised here was canvassed before the Court and ultimately the Apex Court held that it is not sufficient and also explained its decision in National Insurance Company Ltd. v. Annappa Irappa Nesaria and others (2008 (1) TAC 812) and the purport and concept is as follows. 2. Prior to the amendment Act of 54 of 1994 u/s 10 of the M.V.Act there were a category of vehicles described as 'e' to 'h'. By virtue of the amendment 'e, f, g, h' were substituted with the word 'transport vehicle'. The transport vehicle is defined under S.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”. M.A.C.A. 1839 OF 2009 -:3:- Admittedly the vehicle involved is a mini lorry used for transporting goods and therefore it comes under the purview of a transport vehicle. Then referring to S.3 of the M.V.Act, “No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle, and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do.” So under S.3 it is obligatory and mandatory to have a proper licence. Admittedly the vehicle involved in the accident being a transport goods vehicle and evidently the licence to drive a light motor vehicle is not sufficient and therefore there is a statutory violation of S.3 of the M.V.Act and therefore the insurance company is entitled to raise that plea. 3. The next question is regarding the question whether the insurance company is to be totally exonerated or not. Now the intention behind a benevolent legislation is to give compensation to accidental affected victims and therefore a third party shall not be deprived of the same. M.A.C.A. 1839 OF 2009 -:4:- Now here it is only a breach of the policy condition and as contemplated in Swaran Singh's case- National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) paragraph 76, it is only appropriate to direct the insurance company to pay the amount and receive it from the owner. Therefore the finding of the Tribunal making the insurance company totally liable is set aside and the company is directed to make the payment and get it reimbursed from the owner. 4. In the result the MACA is partly allowed and the claimant is entitled to realise the amount from the insurance company but on satisfaction of the award by the insurance company it is entitled to recover the amount from the owner of the vehicle. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-