IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 MACA.No. 1303 of 2005(D) ------------------------------------- O.P.M.V. NO. 476/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA. .................... APELLANT/RESPONDENTS 1 & 2: ------------------------------------------------ 1. T.D.JOSEPH, THOPPIL (H), CHENGALAM P.O. 2. SRI.SASIKUMAR, VELLIYIL (H),WARD NO.8, ELAMPALLY P.O. BY ADV. SRI.P.K.SIVADASAN NAIR, SRI.K.N.GOVINDANKUTTY MENON, SRI.S.MADHAVAN NAIR. RESPONDENTS/ PETITIONER AND 3RD RESPONDENT: ------------------------------------------------------------------------------ * 1. (M.K.GOPALAN, MURICKANANICKAL (H), ELANGULAM P.O., PONKUNNAM.) *DIED. 2. THE UNITED INDIA INSURANCE CO. LTD., PONKUNNAM. *IT IS RECORDED, AT THE RISK OF THE APPELLANT, THAT R1 DIED ON 10/08/05 AND HIS LEGAL HEIRS ARE NOT REQUIRED TO BE IMPLEADED, AS PER ORDER DT. 03/03/06 ON MEMO DT.21/02/06. ADV. SRI.C.V.BIMAL ROY FOR R2. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 1303/2005-D: ORDER ON I.A. NO. 534/2006 IN M.A.C.A. NO. 1303/2005-D DISMISSED 13/08/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1303 OF 2005 = = = = = = = = = = = = = = = Dated this the 13th day of August, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)476/99. The claimant died during the pendency of the appeal and this Court permitted to delete his name at the risk of the appellants. Since it is done, any argument with respect to the negligence cannot be considered by this Court at this point of time. Then the only question that survives for consideration is regarding the interse dispute between the owner/driver and the insurance company. It is the case that the driver did not have a valid driving licence. The Tribunal held he was driving the vehicle and thereafter on the basis of a charge in the charge sheet held that in the absence of a driving licence the insurance company is entitled to get reimbursement from the owner. Learned counsel for the appellant would contend before me that the Tribunal has not followed the principles laid down in Swaran Singh's case- (National Insurance M.A.C.A. 1303 OF 2005 -:2:- Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) and Paragraph 102 (vi) of which is as follows: “Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under Section 149(2) of the Act.” 2. In the light of the said pronouncement it is necessary to consider whether the absence of a driving licence is/are so fundamental as are found to have contributed to the cause of the accident. Unfortunately, this aspect has not been considered by the Tribunal and therefore the matter requires reconsideration. Learned counsel also M.A.C.A. 1303 OF 2005 -:3:- would contend that there is some willful breach of the policy condition and that also may be considered. Therefore, the award under challenge is set aside so far as it relates to the right of reimbursement is granted and the Tribunal is directed to consider that question afresh in the light of the pronouncement of the Apex Court in Swaran Singh's case and also the contention whether there is any fundamental breach of policy condition. For this purpose appellants as well as the insurance company is permitted to adduce both documentary and oral evidence in support of their respective contentions and the Tribunal shall disposed of the matter in accordance with law. Till such a decision is taken recovery from the appellants shall stand stayed. Parties are directed to appear before the Tribunal on 20.9.08. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-