IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 MACA.No. 1331 of 2008() ----------------------- OPMV.1344/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT:RESPONDENT NO.3 IN O.P.(MV): -------------------------------------------------------------------- THE MANAGER, UNITED INDIA INSURANCE CO.LTD., HOSPITAL JN., NEYYATTINKARA. BY ADV. SRI.K.SANDESH RAJA RESPONDENTS: PETITIONERS/1ST AND 2ND RESPONDENTS: -------------------------------------------------------------------------------------------- 1. RAJENDRAN, S/O.SATHYENESAN , MEKELARA PUTHEN VEEDU, THODUVATTIPARA, KARINGAL, KUVALASSERI PO., 2. P.NAUSHAD, PALLINADE PUTHEN VEEDU, ARUMALOOR, KANDALA.PO. 3. ANEESH, S/O.SASIDHARAN NAIR, KARTHIKA, NEAR OF BHARAKALI TEMPLE UNDUVETTY, MELARIYODE, MARANELLOOR BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1331 OF 2008 = = = = = = = = = = = = = = = Dated this the 7th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Neyyattinkara in O.P.(MV) 1344/02. The claimant who sustained injuries in a road accident has been awarded a compensation of Rs.86,960/- and the 3rd respondent, insurance company is directed to make the payment. The appeal is preferred by the 3rd respondent, insurance company on the ground that there has been breach of policy conditions and therefore the insurance company is not liable to indemnify the insured and therefore the award of the Tribunal is erroneous. Learned counsel also would contend that at least the Tribunal should have given the right to recovery under the provisions of the Act. 2. So far as the liability of the insurance company with respect to the driving licences had been elaborately dealt with by the Full Bench decision of the Supreme Court reported in National Insurance Co. Ltd. v. Swaran Singh M.A.C.A. 1331 OF 2008 -:2:- (2004 (1) KLT 781). In paragraph 102, the matter has been put in a nutshell as follows. “The breach of policy conditions, i.e., disqualification of driver or invalid driving licence etc. to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding the use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” It is further held that “Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence are so fundamental as are found to have contributed to the cause of the accident. “The Tribunal in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of M.A.C.A. 1331 OF 2008 -:3:- 'fundamental breach' to allow defences available to the insurer under Section 149(2) of the Act.” The Bench also held that “the insurance companies are, however, with a view to avoid their liability must not only establish the available defences raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the burden of proof therefor would be on them.” 4. Learned counsel appearing for the company would strongly contend before me that absence of a licence and the existence of the policy are not proved and that the insurance company filed I.A.509/05 to prove the licence. The Tribunal in paragraph 10 of its award held that the driving licence has been produced and there is no mention about the badge therein. But the Tribunal proceeds to rely upon the police charge and found that there was a valid driving licence and it also gives proper badge No.542/02. So the Tribunal was convinced that there was valid driving licence and a badge to the person who was driving the vehicle at the time of the accident. When there are materials as held by the Apex M.A.C.A. 1331 OF 2008 -:4:- Court the burden is on the insurance company to prove it otherwise. The Apex Court has held that mere absence of a badge would not amount to breach of policy condition unless it is established that it was a fundamental cause for the accident. This Court has held so in the decision reported in Ramachandran v. Unnikrishnan (2006 (2) KLT SN page 15 case No.20). It was held therein that, “Mere absence of a badge to drive a commercial vehicle is not sufficient but it must be proved that it is the reason for the accident.” In the absence of any materials it cannot be held that it is the reason for the accident and I am convinced that materials are not sufficient to hold about the fundamental breach. Therefore I do not propose to interfere with the decision rendered by the Tribunal and so the MACA is dismissed. M.N. KRISHNAN, JUDGE. ul/-