IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 MACA.No. 1835 of 2008() ------------------------------------ OPMV.725/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): /3RD RESPONDENT IN THE OP --------------------------- UNITED INDIA INSURANCE CO.LTD., CHERTHALA, REPRESENTED BY THE ASSISTANT MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI - 11. BY ADV. SRI.A.R.GEORGE RESPONDENT(S): CLAIMANT/RESPONDENTS 1&2 IN THE OP -------------------------- 1. NM JAYADEVAN, S/O. MADHAVAN, KIZHAKKEVELI, PATTANAKKAD POST, CHERTHALA. 2. SIVAN @ SIVASANKARAN NAIR, S/O. KRISHNA PILLAI, KUMBALATH VEEDU, VECHOOR POST VAIKOM. 3. THOMAS, S/O. JOSEPH, CHITTEZHATHUCHIRA VEEDU, VECHOOR POST, VAIKOM. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R3 SRI.ANTONY JOSEPH V. FOR R3 SRI.T.P.RAMESH (THEKKUMTHALA) FOR R3 SRI.K.S.JIJO FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.1835 OF 2008 ===================== Dated this the 3rd day of December 2008 JUDGMENT This appeal is preferred against the award of the Addl.Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV)No.725 of 2000. The claimant sustained injuries in a road accident when the cycle in which he was travelling was hit by a goods auto vehicle. The Tribunal awarded a compensation of Rs.15,000/-. The insurance company has contended that the driver was only having a learner's licence with which he is not expected to drive a goods auto vehicle and therefore there is breach of policy conditions and so the insurance company is entitled to reimbursement. The Tribunal in the light of the decision in National Insurance Co.Ltd. v. Swaran Singh(2004(1) KLT 781(SC) held that the company cannot avoid the liability. It is against that decision, the present appeal is preferred by the insurance company. 2. I will straightaway referred to the decision of the Apex Court in New India Assurance Co.Ltd. v. Rashanben Rahemansha Fakir(2008(3) TAC 20(SC). It was a case where an auto delivery van, a commercial MACA 1835/2008 -:2:- vehicle was driven by a person holding a valid light motor vehicle licence and it was contended that since the auto vehicle also will come within the definition of a light motor vehicle as its unlaiden weight is less than 7500 kgs. he is having valid licence and therefore there is no breach of policy condition. The Apex Court considered the question and held that the auto when it is used for carrying goods it becomes a transport vehicle as contemplated under Section 2(47) of the Motor Vehicles Act and a person in order to drive a transport vehicle must have a valid driving license to drive the same. Here is a case where a goods auto vehicle is being driven by a person holding a learner's licence. He does not have a badge. So there is totally no valid license. Quoting the dictum laid down in National Insurance Co.Ltd. v. Swaran Singh(2004(1) KLT 781), in the very same judgment, when the insured can make the insurer liable is also stated in paragraph 13 of the above said case, which reads thus: “If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence”. Here, the accident is not on account of the mechanical failure or an act of God and therefore it will not MACA 1835/2008 -:3:- come under the exceptional circumstances contemplated under the decision in Swaran Singh's case. Therefore in the light of the aforesaid decision referred to above, I have no hesitation to hold that the driver of the offending vehicle did not have a valid and effective driving licence to drive an auto vehicle and it was incompetent on the part of the owner to direct a person without valid licence to drive a vehicle and so there is clear breach of policy conditions which will entitle the insurance company to get reimbursement from the owner after satisfying the claim of the 3rd party, viz., the claimant. In the result, the MACA is allowed and the insurance company is permitted to realise the amount paid by it to the claimant from the owner of the vehicle by execution of the very same award. M.N.KRISHNAN, JUDGE Cdp/-