IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 MACA.No. 851 of 2006(G) ------------------------------ OPMV.393/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): /3RD RESPONDENT: --------------------------------------- THE ORIENTAL INSURANCE CO. LTD., THODUPUZHA, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): RESPONDENTS 1 & 2: -------------------------------------------- 1. K.M. MAITHEEN, S/O. MUHAMMADU, KANAPPARAMBIL HOUSE, KALAYANTHANI P.O., ALAKODE VILLAGE, THODUPUZHA TALUK, IDUKKI DIST. 2. RADHAKRISHNAN, S/O.SANKARAN NAIR, VALLAPPILLIL HOUSE, ALAKODE VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR FOR R1 SRI.RENJITH B.MARAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 851 OF 2006 = = = = = = = = = = = = = = = Dated this the 14th day of November, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)393/03. It is the case of the claimant that while he was standing in front of a shop an auto rickshaw came and hit on him resulting in injuries to him. Even in the trial court the driver and the owner had chosen to remain absent. The insurance company specifically contended that the vehicle involved in the accident is a goods carrying commercial vehicle and that the driver of the auto rickshaw at the relevant time was not holding a valid driving licence to drive a three wheeler and therefore it amounts to breach of policy conditions and so the insurance company is entitled to get recovery from the owner. The Tribunal in paragraph 13 of the judgment has stated about these things but jumps to the conclusion that since the person injured is a third party, all are liable. It is true that a third party on account of the breach of conditions M.A.C.A. 851 OF 2006 -:2:- of the policy is entitled to get the amount from the insurance company but at the same time it is always a settled position that the owner will be answerable to the insurance company for the breach of policy conditions in the form of reimbursement of the said amount. A perusal of paragraph 13 of the award would reveal that the driver did not have the necessary badge to drive an auto rickshaw on the date of the accident. He has got a licence to drive a light motor vehicle and subsequently he had also obtained licence for driving HGV and HPV. 2. This matter came up for consideration precisely before the Apex Court reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20(SC). The Apex Court was considering a case exactly of the very same nature where a commercial goods vehicle namely an auto rickshaw was involved in the accident. The Apex Court held that by virtue of the definition of the transport vehicle, three wheeler vehicles come with the ambit of a transport vehicle. Therefore to drive an auto M.A.C.A. 851 OF 2006 -:3:- rickshaw a person must have a valid licence and badge to drive a transport vehicle. It is that badge which authorizes the person to drive a public transport vehicle or a goods vehicle. In the light of the said decision it has to be held that the driver of the auto rickshaw did not possess the required valid driving licence to ply the vehicle on the date of accident and therefore there was breach of policy conditions which entitles the insurance company to get recovery right from the owner. Therefore the MACA is allowed and the award is modified and it is held that the insurance company on satisfaction of the award to the claimant is entitled to recover the amount from the owner of the vehicle by executing the very same award. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-