IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 MACA.No. 519 of 2005() ---------------------- OPMV.288/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): APPELLANTS/RESPONDENTS 1 AND2 ------------------------------------------- 1. MOHAMED BAVA, S/O. MOIDEENKUTTY, KARIYARAKKAL HOUSE, P.O.NIRAMARUTHOOR. DRIVER OF JEEP KL 10 B-3156. 2. V.MANOHARAN S/O. KUNCHUNNI NAIR, VALAVIL HOUSE, P.O.NIRAMARUTHOOR. OWNER OF KL 10B 3156. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): PETITIONERS/RESPONDENTS 3 TO 7 --------------------------------------------- 1. K.KUNCHAYYA D/O. CHATHAKUTTY, AGED 42 YEARS, OTTUMPURAM HOUSE, NIRAMARUTHUR AMSOM DESOM, TIRUR TALUK. 2. SUNIL KUMAR S/O. KUNCHAYYA, AGED 11 YEARS, (MINIR) REP.BY MOTHER, GUARDIAN, K.KUNCHAYYA, D/O. CHATHAKUTTY, NIRAMARUTHUR AMSOM, TIRUR TALUK. 3. THE UNITED INDIA INSURANCE CO.LTD., P.O.CALICUT, INSURER OF KL 10B 3156. 4. K.SUBRAMANIAN S/O. KUTTIKRISHNAN NAIR, KARIKKAVEETTIL HOUSE, P.O.CHAMRAVATTOM. OWNER OF KL 83301. 5. K.VIJAYAN S/O. CHAKKU, KOORIYIL HOUSE, P.O.NIRAMARUTHOOR. DRIVER OF KL 83301 TREKKER. 6. THE NEW INDIA ASSURANCE CO.LTD., P.O.TIRUR, INSURER OF KL 83301. 7. CHENNAPPAN S/O. KANNAN, AGED 50 YEARS, CHARATH HOUSE, P.O.NIRAMARUTHOOR, TIRUR TALUK. ADV. SRI.K.P.MUJEEB FOR R1 & R2 SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. * * * * * * * * * * * * * M.A.C.A.No.519 of 2005 ---------------------------------------- Dated this the 13th day of July 2011 J U D G M E N T BASANT,J. C.M.Application No.758 of 2005 This application is to condone the delay of 206 days in filing the M.A.C.A. We take a lenient view. This petition is allowed. Delay is condoned. M.A.C.A.No.519 of 2005 The driver and the owner of a vehicle involved in an accident are the appellants. Death of a passenger in the vehicle took place and the dependents of the said deceased person claimed compensation. By the impugned award, the Tribunal directed payment of Rs.1,69,500/- as compensation of which the appellants were directed to satisfy 50% of the amount. No other party has come up to challenge the impugned award. The appellants assail the direction in the impugned award issued under Sec.149(4) of the Motor Vehicles Act that the insurer, after satisfying the award, shall be entitled to recover the amount from the appellant herein. M.A.C.A.No.519/2005 2 2. That finding of the Tribunal is based on the fact that the driver of the insured vehicle at the relevant time, though he was duly licensed to drive the vehicle, did not have the badge under the provisions of the M.V.Act and Rules which is essentially for a driver to drive a transport vehicle. 3. The learned counsel for the appellants submits that in view of the decision of another Division Bench of this Court in P.T.Moidu v. Oriental Insurance Co.Ltd. [AIR 2008 KERALA 43], there can be no semblance of doubt on the question of law. 4. We find merit in that contention. The question whether absence of badge for a person duly licenced to drive a type of vehicle that he was found driving was considered by the said Division Bench in Moidu (Supra). The dictum laid down by the Division Bench after considering all the earlier rulings on the point is summarised by that Bench as follows: “In this case, driver was having a valid driving licence to drive the type of vehicle which he was driving (jeep). He was not driving a four wheeler with licence to drive a two wheeler or driving a heavy vehicle with licence to drive a M.A.C.A.No.519/2005 3 light motor vehicle. There is no contention for the insurance company, even in the appeal, that absence of the badge is a fundamental breach of policy condition and it is a cause for the accident. Hence, on the facts of this case, following the dicta laid down in Swaran Singh's case (supra), we are of the opinion that the insurance company cannot be exonerated in indemnifying the owner. Merely because driver of the vehicle who was duly licensed was not having a badge will not enable the insurance company to shirk its liability as per Section 149 of the Motor Vehicles Act and insurance company also failed to prove that insured has committed a fundamental breach of the policy conditions resulting in the accident. Hence, we set aside the direction of the tribunal enabling the insurance company to recover the amount after depositing the amount of compensation from the appellant/insured. Appeal is allowed. Parties to bear their respective costs.” 5. In this case also, the driver was admittedly duly licensed to drive the vehicle which he was found driving at the time of accident. It is true that he did not have a badge. That M.A.C.A.No.519/2005 4 finding of fact is not questioned by the appellants also. But the requirement insisting on a badge for a duly licensed driver is, according to us, not such a condition of policy, the breach of which can be said to be a fundamental breach entitling the insurance company to avoid liability under Section 149(2) of the M.V.Act or to claim recovery of the amount from the owner/driver of the vehicle. At any rate, we are bound by the dictum in Moidu (Supra). The same has been followed. No attempt is made before us to contend that the said statement of law is not correct or that it warrants reconsideration. 6. In the result, a) This appeal is allowed. b) The direction issued by the Tribunal enabling the 3rd respondent to recover the amounts after discharging the liability to the claimants from the appellants herein is hereby set aside. c) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) jsr // True Copy// PA to Judge