IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 MACA.No. 1950 of 2005() ----------------------- OPMV.680/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/IST RESPONDENT: ----------------------------------------- V.S.MATHAI, AGED 50 YEARS, SON OF SRI.SCARIA, VALIYAMARAVATHU HOUSE, RAMAMANGALAM VILLAGE, MUVATTUPPUZHA. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. SMT.MANJUSHA MOHANDAS RESPONDENTS: PETITIONER & RESPONDENTS 2 & 3: ------------------------------------------------------------------------------- 1. EBIN K.V, SON OF SRI.VARGHESE, KUNJILAPADATHU HOUSE, THURUTHIKKARA, PANGARAPILLY. 2. MATHAI PETER @ PETER, S/O.MATHAI, EDAYATHUPARAYIL, PANGARAPPILLY, MULANTHURUTHY. 3. NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA. BY ADV. SRI.MATHEWS JACOB (SR.) - R3 SRI.P.JACOB MATHEW - R3 SRI.K.K.VIJAYAKUMAR - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2008 ALONG WITH MACA NO. 1956 OF 2005 AND WPC NO. 31687 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.3526/2005 IN I.A.NO.1950/2005 DISMISSED 17/06/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N.KRISHNAN, J. -------------------------- M.A.C.A. Nos. 1950 , 1956 of 2007 & W.P(C) No. 31687 of 2005 --------------------- Dated this the 17th day of June, 2008 JUDGMENT M.A.C.A. Nos. 1950 , 1956 of 2007 and W.P(C) No. 31687 of 2005 are filed by the owner of the vehicle in OP(MV) Nos.680/01, 683/01 and 682/01 of the Motor Accident Claims Tribunal, Muvattupuzha. The owner and driver did not enter appearance before the Tribunal and now has come forward with the appeals and petition contending that the Tribunal had gone wrong in casting the liability on them to repay the amount. The Tribunal gave the recovery right to the Insurance Company on the basis that there was no driving licence for the 2nd respondent. So there is a breach of policy condition and therefore granted the right for recovery. The court below also held that being a third party, the Insurance Company cannot escape from the liability and therefore directed it to pay the amount and then recover it from the owner. 2. Now, along with these appeals and petition, document is produced to show that there is a driving licence and there is also a badge to show that the licence to drive a transport vehicle is valid from 7.3.01 to 6.3.04. 3. Learned counsel for the Insurance Company would strongly contends that as the accident had taken place on 16.2.01, the question of a M.A.C.A. Nos. 1950 , 1956/07 & W.P(C) No. 31687/05 2 valid badge being not there, the Insurance Company is entitled to recover the amount. It is only a photocopy of the document that is produced. Whether there was a licence up to that date is also a matter that has to be proved and then only the question of a absence of a badge arises for consideration. The Tribunal has to follow the principles laid down in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)] to affix the liability on the owner and to exclude the Insurance Company. In para 102 (iii) and (vi) the Apex court has held that the mere fact that it is a fake licence or there was a defective licence would not exonerate the Insurance Company from the liability to the insured unless it is proved that consciously knowing about the factum of the non availability of the licence the owner has entrusted the vehicle. The Apex court held that the absence of a licence must be so fundamental to the cause of accident. Swaran Singh's decision had been explained in the other decisions of the Apex court. Therefore, first of all, it has to ascertain whether there was any valid licence and then only the question as to whether there was a licence to drive a transport vehicle will arise. Then the next question will be whether in the light of the enunciated principles laid down right from the Swaran Singh's case, the Insurance Company can be exonerated or can be given the right to recover it from the owner. So for considering all these points, the matter requires reconsideration. M.A.C.A. Nos. 1950 , 1956/07 & W.P(C) No. 31687/05 3 Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal only for the limited purpose of deciding the inter se liability between the owner and the Insurance Company. For that purpose, the parties are directed to produce documentary evidence and adduce oral evidence in support of their respective contentions. Thereafter, the Tribunal is directed to dispose of the matter in accordance with the enunciated principles of law laid down by the Apex court on the subject. I make it clear that the presence of the claimant need not be insisted for disposal of the case. Accordingly, M.A.C.A. Nos. 1950 , 1956 of 2007 and W.P(C) No. 31687 of 2005 are disposed of. Parties are directed to appear before the Tribunal on 29.7.08. M.N.KRISHNAN, JUDGE vps M.A.C.A. Nos. 1950 , 1956/07 & W.P(C) No. 31687/05 4 M.A.C.A. Nos. 1950 , 1956/07 & W.P(C) No. 31687/05 5