IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 MACA.No. 1637 of 2005() ----------------------------------- OPMV.686/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT/THIRD RESPONDENT: -------------------------------------------------- BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., M.G. ROAD, KASARGOD. BY ADV. MR.RAJAN P.KALIYATH RESPONDENTS/CLAIMANT AND R1 AND 2: ------------------------------------------------------------ 1. ABDUL AZEEZ, S/O. UMMER SAHIB, RESIDING AT KAIKAMBAM, POST UPPALA, KASARGOD TALUK AND DISTRICT. 2. ABDUL SALAM, S/O. ANDRUMAN, RESIDING AT PERINGIDI, POST UPPALA, KASARGOD TALUK AND DISTRICT. 3. MOHAMMED SHAFI, S/O. ABDUL RAHIMAN, HOUSE NO.XCVII 28, KAZI LANE, POST THALANGARA, KASARGOD TALUK AND DISTRICT. R1 BY ADV. MR.T.B.SHAJIMON . R3 BY ADV. MR.M.RAMESH CHANDER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1637 of 2005 ORDER ON I.A. NO.2970/2005 IN MACA NO.1637/2005 DISMISSED 14/10/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1637 OF 2005 = = = = = = = = = = = = = = = Dated this the 14th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV)686/01. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.31,250/- with a direction to the insurance company to deposit the amount. It is challenging that finding the insurance company has come up in appeal. 2. In paragraph 8 of the award the Tribunal held that the insurance company has not let in any material in the case even to show that the first respondent driver had no valid driving licence when the accident took place. It also observed that as per the dictum laid down in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) it has to be proved that absence of a valid licence was the fundamental cause for the accident. There are limitations for the insurance company as M.A.C.A. 1637 OF 2005 -:2:- well in matters of this nature. The owner and driver whose liability is being indemnified by the insurance company have also got certain responsibilities in these types of matters. The police has filed a petty charge against the driver of the vehicle for driving the vehicle without a valid driving licence. I.A.52/04 was filed calling upon the owner and the driver to produce the licence but it was not produced and similarly another petition was filed as I.A.571/04 seeking permission to summon the case diary to prove the factum of the absence of the driving licence. The Tribunal dismissed it. What else can be done by an insurance company in cases of this nature. They have tried their level best and the person who is bound to produce and who is in possession of the driving licence, if any, does not come before Court. So necessarily an adverse inference has to be drawn in such types of cases for the reason that non production did lead to the conclusion that there was no valid driving licence at that time. So that finding of the learned Tribunal is not proper. 3. The next question is what will be the impact. The Hon'ble Supreme Court in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT M.A.C.A. 1637 OF 2005 -:3:- 781) in paragraph 82 has dealt with that position. The Court held that, “In each case on evidence led 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 the 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 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.” Here the breach is not of a technical breach. It goes to the root of the matter and the accident did not take place on account of any mechanical defect or other circumstances not connected with the driver of the vehicle. When it is so, absence of driving licence has to be held as a fundamental cause for the accident and therefore it amounts to breach of policy conditions. M.A.C.A. 1637 OF 2005 -:4:- 4. So far as the compensation is concerned a third party cannot be attributed anything for the absence of a driving licence. A benevolent legislation is to safeguard his interest and since there is only a breach of policy condition in such cases the insurance company has to be directed to pay the amount to the claimant and on satisfaction of the award it has to get it reimbursed from the owner of the vehicle for the breach of policy conditions committed by him. Therefore the award passed by the Tribunal is modified to that extent that the insurance company on satisfaction of the award to the claimant is entitled to get reimbursement of 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/-