IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 MACA.No. 591 of 2008() ---------------------- OPMV.569/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT(S): APPELLANT (IST RESPONDENT) ---------------------------------------- THE SECRETARY, KERALA GOVT.SECRETARIAT, STAFF HOUSING CO-OPERATIVE SOCIETY LTD T.732, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): (APPLICANT/RESPONDENTS 2 TO 4) --------------------------------------------- 1. ABDUL RASHEED, S/O.LATE MUHAMMED ALI, PONGATHARA VEEDU, KUNNUMPURAM, ANDOORKONAM P.O (VIA) POTHENCODE, TRIVANDRUM DISTRICT. 2. Y.HASHIM, S/O.YOOSUF, LEKSHOM VEEDU, NO.12, ANDOORKONAM, POTHENCODE P.O TRIVANDRUM DISTRICT. 3. M/S.VALID INDIA INSURANCE COMPANY LTD, DIVISIONAL OFFICE, CWC BUILDING, IMS COMPOUND, PALAYAM, TRIVANDRUM. 4. LAILA BEEVI, D/O.BALKIS BEEVI, C/O.ABDUL RAHIM, POLICE CONSTABLE, DRIVER, S.P'S OFFICE (RAILWAYS), THYCAUD, TRIVANDRUM - 14. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 591 OF 2008 --------------------------------- Dated this the 22nd day of January, 2009 JUDGMENT This appeal is preferred by the 1st respondent, the owner of the vehicle against the direction of the Motor Accident Claims Tribunal, Attingal in O.P.(MV) No.569/97, for reimbursement of the amount on account of the breach of policy conditions. An accident had taken place and the tribunal found that the accident took place on account of the 2nd respondent's negligence. Thereafter the tribunal fixed the compensation and found that the driver did not have a valid and proper driving licence and so found that there was breach of policy conditions and thereby directed the owner of the vehicle to reimburse the amount to the Insurance company as the Insurance Company has to discharge the liability with respect to a third party involved in the accident. The result of the appeal will depend upon the question whether there was a valid and effective driving licence for the 2nd respondent who was the driver of the vehicle at the relevant point of time. The definite finding of the tribunal is that the vehicle involved is a transport vehicle called a omini bus and the person who drove the vehicle did have only M.A.C.A.No. 591/2008 -2- learner's licence to drive the vehicle. A transport vehicle is defined under Section 2(47) of the Motor Vehicles Act. A vehicle when it carries public it becomes a transport vehicle and for driving a transport vehicle must have a valid driving licence with badge. Unfortunately not even a regular licence is there in this case and what is available is only a learner's licence. The tribunal has elaborately considered this issue in para 15 of the award. The evidence tendered by the respondent was analysed and the evidence would reveal that the person who appointed him namely Raman was not examined. The tribunal also held that even from the different particulars shown by 1st respondent and from the oral evidence of 2nd respondent it is clear that 2nd respondent had only a learner's licence. When it is so, a person not competent to drive was entrusted with a transport vehicle and the accident had taken place on account of his negligence. It was a duty cast upon the owner of the vehicle to employ a person who had a valid driving licence. Therefore there is breach of policy conditions as found by the tribunal. Therefore I do not find any error committed by the tribunal in directing the owner to reimburse the amount to the Insurance Company. 2. The learned counsel for the appellant would contend before me that the driver should be also liable to pay. It has to be M.A.C.A.No. 591/2008 -3- remembered that the right to recovery comes on account of the breach of policy conditions that is the breach of contract. The contract is entered into between the owner and the Insurance Company and when there is breach of policy condition, the Insurance Company can only proceed against the person who is a party to the contract and not against a stranger. Since there is no privity of contract between the driver and the Insurance Company for breach of policy conditions, the Insurance Company cannot be directed to realise the amount from the driver. So that contention also cannot be accepted. 3. The learned counsel prays for some time and I feel in fitness of things, a direction can be given to the Insurance Company not to proceed with coercive proceedings for a period of 6 months so as to enable the appellant herein to pay the amount. In the result, the appeal is dismissed but the Insurance Company is directed not to take coercive proceedings for the realisation of the amount for a period of six months so as to enable the appellant to pay the amount. M.N. KRISHNAN,JUDGE vkm