IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 MACA.No. 1687 of 2011() ----------------------- OPMV.1074/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT : THIRD RESPONDENT IN THE O.P(MV) -------------- THE UNITED INDIA INSURANCE CO. LTD., NEYYATTINKARA BRANCH, REPRESENTED BY THE MANAGER, UNITED INDIA INSURANCE CO.LTD., OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE RESPONDENTS : PETITIONER & RESPONDENTS 1 & 2 IN THE O.P(MV) --------------- 1. RADHA, W/O.LATE YESUDAS @ SUNDARAN, KUZHAKATTUVILA VEEDU, MURIYANKAA, PARASSALA – 695 502. 2. TITUS, PILANKALAVILA PUTHEN VEEDU, KARUMANOOR, ALAMPARA P.O, KANYAKUMARI DISTRICT – 629 702. 3. JOSE RENJITH SINGH, S/O.YESUBALATHA SOBHANAM, GLASS HOUSE, AYANIVILA, CHERUVARAKANAM, PARASSALA – 695 502. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1687 of 2011 ***************************** Dated this the 21st day of October, 2011 JUDGMENT BASANT, J. This appeal comes up for admission now. The appellant is the insurance company. The claimant claimed compensation for the loss suffered as a result of the death of one Yesudas, her husband, who suffered injuries, and succumbed to such injuries, in a road traffic accident which took place on 20.04.2004. The driver and the owner of the vehicle remained exparte. The insurance company resisted the claim. Inter alia, it was contended that the vehicle had no valid permit to ply as a commercial passenger vehicle in the State of Kerala. It was not disputed that the insured vehicle had a valid permit to ply within the State of Tamil Nadu. 2. The insurance company had filed an objection calling upon the owner of the vehicle to produce the permit. The permit was not produced. 3. We have heard the learned counsel for the appellant. The learned counsel for the appellant submits that it must be reckoned that there was no valid permit at all. It must further be M.A.C.A No.1687 of 2011 2 held that the insurance company is hence entitled to claim absolution from liability under Section 149(2)(a)(i)(c) of the Motor Vehicles Act. 4. We have considered this contention in detail. Section 149(2)(a)(i)(c) reads as follows: “149: Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks:-- (1) ....................... (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action M.A.C.A No.1687 of 2011 3 on any of the following grounds, namely:- (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:- (i) a condition excluding the use of the vehicle- (a) ................. (b) ................... (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or” The vehicle undoubtedly had a permit. The permit certainly authorised carriage of persons. The victim in the instant case was a pedestrian. It cannot possibly be held that the vehicle was used “for a purpose not allowed by the permit”. It is of course true that there is an infraction that the vehicle which was permitted to ply in the State of Tamil Nadu had crossed the borders and had come to the Kerala State. That alone is the alleged violation. M.A.C.A No.1687 of 2011 4 5. In any view of the matter, we are unable to agree that the insurer can succeed in his defence under Section 149(2)(a)(i) (c). The alleged inadequacy/non compliance with the conditions of the permit can by no stretch of imagination be held to be amounting to a breach justifying the acceptance of the defence of the insurance company under Section 149(2)(a) following the rule of “fundamental breach” and “main purpose” accepted by the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh [AIR 2004 S.C 1531]. 6. We are, in these circumstances, satisfied that this appeal is without any merit and is accordingly dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/