IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 MACA.No. 1253 of 2005(C) ------------------------- OPMV.1503/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S):/3RD RESPONDENT. --------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP.BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY ---------------------------------------------------------------------------- 1. K.K.CHANDRASEKHARAN, S/O.A.C.GOPALAN NAMBIAR, SREEPURAM, P.O.KUTTIATTOOR, VIA, MAYYIL, KANNUR DISTRICT. 2. CHALIKANDY PRADEEPAM, S/O.KRISHNAN, CHALIKANDY HOUSE, P.O.ANJARAKKANDY. 3. CHALIL NADUKANDY SANTHOSH, S/O.RAMAN, CHALIL HOUSE, PATHIRIYAD AMSOM, KEEZHATHUR, P.O.PATHIRIYAD, VIA KUTHUPARAMBA. ADV. SRI.P.M.PAREETH FOR R1 SRI.K.V.PAVITHRAN FOR R3 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1253 OF 2005 = = = = = = = = = = = = = = = Dated this the 2nd day of February, 2009 J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV)1503/99. The claimant sustained injuries in a road accident and he has been awarded a total compensation of Rs.33,600/- with 9% interest. The insurance company was directed to pay the amount and it is against that decision the insurance company has come up in appeal. 2. The question that arises for determination in the appeal is whether a person who drives an auto rickshaw without a badge is said to be a person holding a proper licence to drive the vehicle. It is the contention of the insurance company that a driver of an auto rickshaw requires the licence to drive an auto rickshaw and then only it could be classified as one who drives the vehicle under a due licence. A perusal of paragraph 9 of the award would reveal that the driver in this case was having a licence to drive a M.A.C.A. 1253 OF 2005 -:2:- light motor vehicle and also to drive transport vehicle of HGV and HPV. The question whether a licence to drive LMV is sufficient came up for consideration before the Apex Court in the decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20(SC). It was a case where a goods carrying vehicle auto rickshaw was driven by a person with a licence to drive a light motor vehicle. It was contended that being a vehicle having an unladen weight of less than 7,500 kgs. it amounts to a light motor vehicle and therefore a person who possess a licence to drive a light motor vehicle is competent to drive an auto rickshaw public carriage. The Apex Court held that in order to drive a vehicle which comes within the ambit of the definition of the word 'transport vehicle' the requisite licence is necessary. It also considered various forms of issuance of licence and held that the mere possession of a licence to drive a light motor vehicle is not sufficient to drive an auto rickshaw. The transport vehicle is defined under Section 2 (47) of the M.V.Act. It takes in a vehicle which is used to M.A.C.A. 1253 OF 2005 -:3:- carry public or used to carry goods and when such is the position he must have the licence to drive such a vehicle. It means a licence to drive a transport vehicle of that category. The Apex Court further held that, “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.” So far as this case is concerned there is no averment to the effect that the accident taken place on account of a mechanical defect or other unforeseen circumstances. So the dictum laid down in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) is applied it would also make the owner liable for reimbursement. So just because a person possesses a light motor vehicle licence without the requisite badge which is authorizing him to drive a transport vehicle he should be deemed to be a person without proper M.A.C.A. 1253 OF 2005 -:4:- licence. When a public carriage vehicle is operated on the road it is a fundamental duty of the owner of the vehicle to see that a properly licensed person is permitted to ply the vehicle. Therefore I have no hesitation to hold that there is breach of policy conditions which would entitle the insurance company to get back the amount from the owner. Therefore the award under challenge is modified and the insurance company on satisfaction of the amount awarded to the third party is granted permission to get it reimbursed from the owner of the vehicle by executing the same award. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-