IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 720 of 2005() ---------------------- OPMV.660/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT:3RD RESPONDENT IN THE OP(MV): ------------------------------------------------------------------------ MANAGER, NATIONAL INSURANCE COMPANY LTD. HIGH LANE PLAZA, M.G. ROAD, KASARAGODU, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G. ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S): PETITIONERS AND RESPONDENTS 1 & 2 IN THE OP(MV): --------------------------------------------------------------------------------------------------------------- 1. FATHIMATH SHEREEN (MINOR) D/O. ERIYAL SHAREEF, REPRESENTED BY HER FATHER NAMELY ERIYAL SHAREEF, R/AT, ZEENATH NAGAR BANGOD POST, THALANGARA, KASARAGODE DISTRICT. 2. ERIYAL SHAREEF, S/O. A.M. ABDULLA, R/AT ZEENATH NAGAR, BANGOD POST, THALANGARA, KASARAGODU DISTRICT. 3. ABDUL HAMEED M.P., S/O. ABDULLA, MADHUR HOUSE, PALALAM, CHENGALA, KASARAGOD. 4. N.A. HASSAINAR, S/O. MOHAMMED, H.NO.XII/303, HASHIM STREET, THERUVATH, THALANGARA, KASARAGOD. *ADDL.R5 TO R7 ARE IMPLEADED: R5. BEEFATHIMA, W/O.LATE N.A.ASSIANAR @ NARANGA ASSAINAR, AGED 65 YEARS, HASHIM STREET, THERUVATH, THALANGARA, KASARGOD DISTRICT. KSS ..2/- ...2..... M.A.C.A.NO.720/2005 R6. MAMOONHI @ MAMMUNHI, S/O.LATE N.A.ASSAINAR @ NARANGA ASSAINAR, AGED 42 YEARS, HASHIM STREET, THERUVATH, THALANGARA, KASARGOD DISTRICT. R7. SHAFFI, S/O.LATE N.A.ASSIANAR @ NARANGA ASSAINAR, AGED 46 YEARS, HASHIM STREET, THERUVATH, THALANGARA, KASARAGOD DISTRICT. (*ADDL.R5 TO R7 ARE IMPLEADED AS PER ORDER DTD.10/11/2008 IN I.A.NO.2027/2007) ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 SRI.K.JAYESH MOHANKUMAR FOR R1 SRI.K.V.SOHAN FOR ADDL.R6 SMT.SREEJA SOHAN.K. FOR ADDL.R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2008 ALONG WITH MACA NO. 760 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KSS ORDER ON I.A.NO.1516/2005 IN M.A.C.A.NO.720/2005 DISMISSED 10/11/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE KSS M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 720 OF 2005 & M.A.C.A.No. 760 OF 2005 --------------------------------- Dated this the 10th day of November, 2008 JUDGMENT These appeals are preferred against the award of the Additional Motor Accident Claims Tribunal, Kasaragod in O.P.(MV) Nos. 660/2001 and 662/2001. It is the Insurance Company that has come up in appeal challenging the rejection of contention regarding its claim for exoneration of the liability. The basic contentions raised are, the driver of the Autorickshaw did not have a effective valid driving licence on the date of accident and there was no fitness certificate to ply the vehicle. If these two conditions are satisfied there cannot be any doubt that it will amount to breach of policy conditions and in the light of decision in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781(SC)] the Insurance Company would be liable to pay compensation to a third party but will be entitled to get it reimbursed from the owner of the vehicle. The Tribunal relied upon the dictum laid down in Swaran Singh's case found that there is no evidence adduced by the Insurance Company to establish that the absence of the driving M.A.C.A.Nos. 720 OF 2005 & 760 OF 2005 -2- licence was so fundamental as to the cause of the accident. The said approach by the Tribunal cannot be found to be erroneous. But suppose a vehicle is plied in a route even without a fitness certificate it will be too much to hold that it will not amount to breach of policy condition. I do not want to elaborate for the reason I am thinking of granting an opportunity for the legal representatives of the owner as well as the Insurance Company to adduce further evidence in support of their respective contentions. I am informed that the original owner died and the present legal representatives are R5 to R7 of which R5 also died or other words only R6 and R7 are the legal representatives of the deceased owner. I permit them to file a written statement and produce the documents as well and also permit the Insurance Company to produce additional documents if necessary, in support of their respective contentions and the court shall decide the interse dispute between the owner and the Insurance Company and pass appropriate orders. The presence of the claimant need not be insisted and the amount deposited by the Insurance Company towards compensation shall be disbursed in favour of the claimant M.A.C.A.Nos. 720 OF 2005 & 760 OF 2005 -3- and the Insurance Company if succeeds will be entitled for reimbursement from the owner. Parties are directed to appear before the Tribunal on 20.12.2008. M.N. KRISHNAN, JUDGE vkm