IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 MACA.No. 541 of 2009() ---------------------- OPMV.43/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA .................... APPELLANT/3RD RESPONDENT ---------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, VATAKARA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE ADV. MR.P.JACOB MATHEW. RESPONDENTS/RESPONDENTS 1 AND 2 ---------------------------------------------------------- 1. SUBAIR, S/O. ABDURAHIMAN, MANATTUPOYIL HOUSE, IRINGATH.P.O, PAYYOLI, VIA KOZHIKODE. 2. MAJEED, S/O. KUNHABDULLA, AYIRANITHARAMMAL HOUSE, MEPPAYOOR.P.O, KOZHIKODE. R1 & R2 BY ADV. MR.P.ABDUL JALEEL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... M.A.C.A.No.541 OF 2009 ............................................. Dated this the 18th day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Vatakara in OP(MV)No.43/2005. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.96,296/= with interest. The insurance company has come up in appeal challenging that decision. 2. The learned counsel for the insurance company would contend that the vehicle involved in the accident is a taxi car which comes under the definition of transport vehicle and unless there is a specific authorisation to drive that type of vehicle, it has to be held that there is no proper licence and, therefore, it will amount to fundamental breach of the policy conditions and so, the insurance company is at least entitled to have the right to recover the amount from the owner. 3. The learned Tribunal found that there was no badge for the driver to drive the vehicle and the Tribunal held : 2 : M.A.C.A.No.541 OF 2009 that it has not been proved that the absence of the badge had caused the accident. 4. Let me first to consider the question regarding the fundamental breach of the policy conditions. The Hon'ble Supreme Court in the decision reported in National Insurance Co. Ltd. v. Swaran Singh [(2004 (1) KLT 781 (SC)] had considered the fundamental breach in Para 82 of the judgment. The court held that in each case on the evidence lead before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. 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 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, it is not on account of any unforeseen circumstances and absence of the licence has : 3 : M.A.C.A.No.541 OF 2009 nexus with the accident. Therefore, it has to be held that the necessity of a valid licence is an absolute necessity. 5. Now let me to consider whether there was a proper valid licence. First of all, let me to consider the meaning of the word transport vehicle. The word “transport vehicle” has been defined under Section 2(47) of the Motor Vehicles Act which means a public service vehicle, a goods carriage or an educational institution bus or a private service vehicle. A taxi is a public service vehicle and, therefore, it comes within the definition of transport vehicle. Now, two other sections which require consideration are Sections 3 and 10 of the Motor Vehicles Act. Prior to the amendment to Section 10, clauses (e) to (h) categorized medium motor vehicle, light motor vehicle etc and by virtue of the amendment made to Section 10 of the Motor Vehicles Act, Clause-e was substituted using the word transport vehicle. So, Section 10 deals with these type of cases. Now we will refer to Section 3. Under Section 3, no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the : 4 : M.A.C.A.No.541 OF 2009 vehicle and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. So, it is the mandate of Section 3 that there must be a specific entitlement endorsed in the licence to drive the vehicle. We can call it a badge. Therefore, presence of a badge is a sine quo non for the purpose of driving a transport vehicle. Admittedly, in this case, there is no badge. This position has been considered by the Hon'ble Apex Court in the decision reported in New India Assurance Co.Ltd v. Roshanben Rahemansha Fakir (2008 (3) TAC 20 (SC). In that case the court held that possession of an effective driving licence is necessary in terms of the provisions of the Act. So, it is found that there is no proper driving licence. Since there is nothing to show that the accident had taken place on account of some other unforeseen circumstances and as there is no valid driving licence for the person to drive the vehicle, it amounts to fundamental breach of the policy conditions which entitles the insurance company to get reimbursement of the amount. 6. Therefore the award under challenge is modified : 5 : M.A.C.A.No.541 OF 2009 and it is held that the insurance company is entitled to get reimbursement of the amount paid for the satisfaction of the award from the owner after satisfying the claimant. They can execute the same award for the purpose of getting reimbursement of the amount from the owner. Disposed of accordingly, M.N. KRISHNAN, JUDGE cl