IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 MACA.No. 238 of 2009 ------------------------------- OPMV.65/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): ----------------------- 1. KAITHAKATH ABDUL RAHEEM, S/O.MOHAMMED KUTTY, KANDANATH HOUSE.PO., VELIMUKKU SOUTH, MALAPPURAM. 2. KAITHAKATH ABOOBCKER, S/O.MOHAMMEDKUTTY KANDANATH HOUSE, PO.VELIMUKKU SOUTH, MALAPPURAM. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): --------------- 1. ULLATT SULAIKHA, W/O.ULLATT ABDUL SALAM, ULLAT HOUSE, PO.MOONNIYUR, TIRURANGADI TALUK MALAPPURAM. 2. UNITED INDIA INSURANCE CO.LTD., PANDI AUTO MOBILIES BUILDINGS, POST BOX NO.11, UP HILL, MALAPPURAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2009, ALONG WITH MACA Nos. 239 & 241 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.No. 238 of 2009 I.A.No. 273 OF 2009 in MACA.No. 238 of 2009 DISMISSED SD/- M.N.KRISHNAN, JUDGE 29.1.2009. // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- M.A.C.A.Nos. 238, 239 & 241 OF 2009 -------------------------------------------- Dated this the 29th day of January, 2009 JUDGMENT All these appeals are preferred by respondents 1 and 2 in the claim applications O.P(MV) Nos. 65, 67 and 68 of 1998 of the Motor Accident Claims Tribunal Tirur. The litigation has a fair long carrier and initially the Insurance Company was absolved of its liability against when M.A.C.A.Nos. 1078, 1073 and 1077 and 1080 of 2004 were filed. The High court remanded the case with a direction to consider whether there was a valid driving licence as contemplated under the Act and whether the Insurance Company could be exonerated from the liability. It was also observed by the High Court that a driving licence of the driver which is having validity from 7.12.94 to 16.12.1994. The licence to drive a transport vehicle is valid from 18.9.95 to 17.9.98. The date of accident was on 18.1.1995. So even by going through the contentions of the appellant there was no licence to drive a transport vehicle for the driver on the relevant date of accident. Of course there was a driving licence. This position has been considered by the apex court in various decisions and in one case a contention was raised that M.A.C.A.Nos. 238,239 & 241 of 2009 -2- since the laden weight of an autorickshaw is less than 7500 kgs it will come within the ambit of the word light motor vehicle defined under the Motor Vehicles Acts and therefore no further licence is necessary to drive an autorickshaw or transport vehicle. The matter was again considered by the apex court in the decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and another [2008 (3) T.A.C 20]. The apex court held that the driving licence for the purpose of driving an autorickshaw delivery van is a must and there must be licence to drive a transport vehicle and the definition of the light motor vehicle cannot be used for that purpose. The apex court after elaborately considering the various provisions of the Motor Vehicles Act coupled with the form in which licence was issued held that in order to drive an auto delivery van possession of an effective licence is necessary. The word transport vehicle has been defined under Section 2 (47) of the Motor Vehicles Act. It takes in a vehicle which is to carry public or in other words passengers and so for driving an autorickshaw for hire amounts to carry public which squarely comes within the ambit of transport vehicle. Until and unless there is driving licence to drive transport vehicle, the person is not M.A.C.A.Nos. 238,239 & 241 of 2009 -3- competent to drive. The learned counsel for the appellant strongly contends before me that the two points enumerated in the decision reported in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)] is to the effect that the owner of the vehicle should have fundamental or with knowledge had entrusted the vehicle to a person who is not having a proper driving licence and that the absence of driving licence should be so fundamental as to the cause of accident. In the decision referred to above, the exceptional circumstances carved out has been specifically stated by the Supreme Court which reads as follows: “If on facts, it is found that 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 when a transport vehicle is entrusted to a person the owner’s duty is there to find out whether M.A.C.A.Nos. 238,239 & 241 of 2009 -4- he is properly licensed to drive that vehicle. Similarly it requires much experience to drive a transport vehicle for the reason, it covers the risk of passengers travelling for hire. So when a vehicle is entrusted to an inexperienced man without proper licence it will be so fundamental as to the cause of the accident. So on that basis also, one cannot hold that the owner had taken proper care to entrust the vehicle to a properly licensed person. The learned tribunal had considered this matters elaborately on the point and arrived at a decision that the driver was not duly licensed and the accident was not on account of the mechanical defect or other cause which has no link with the absence of driving licence. Therefore the finding of the tribunal does not call for any interference. Therefore the appeals are dismissed but I direct the Insurance company not to initiate any coercive proceedings for recovery for a period of four months from today. The appeals are disposed of accordingly. M.N. KRISHNAN,JUDGE vkm