IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 MACA.No. 708 of 2003() --------------------------------- OPMV.52/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTS/RESPONDENTS 1 AND 2 ---------------------- 1. VARKEY, S/O PAILY, PANDARIKUNNEL HOUSE, KUMARAMANGALAM VILLAGE, KALOOR KARA, KALORR POST, MUVATTUPUZHA. 2. LEELAMMA VARGHESE, W/O VARKEY, PANDARIKUNNEL HOUSE, KALOOR POST, MUVATTUPUZHA. BY ADV. GRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS: PETITIONER AND 3RD RESPONDENT ----------------------- 1. DILEEP, S/O MOHANAN, KUNNUMPURATHU HOUSE, THRIKKA BHAGAM, VELLOORKUNNAM VILLAGE, VELLOORKUNNAM KARA, MUVATTUPUZHA. 2. THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, THODUPUZHA. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 708 OF 2003 --------------------- Dated this the 23rd day of May, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha, OP(MV) No.52/00. The appellants 1 and 2 are the driver and owner of the vehicle. The Tribunal has awarded a compensation of Rs.13,000/- and held that since the driver did not have a valid licence, the Insurance company on payment of the amount to the claimant is entitled to recover the amount from the owner. It is challenging that finding, the appeal is preferred. 2. Admittedly there was no existing licence in the name of the driver at the time of the accident. There was a licence prior to the accident and it has been renewed subsequently as well. Learned counsel for the Insurance company would contend that since there is no driving licence, there is a breach of conditions of policy and therefore the Insurance company is not bound to indemnify the owner of the vehicle. Learned counsel has cited before me a decision of the Apex court in National Insurance Co. Ltd. v. Kusum Rai [2006 (2) KLT 300 (SC)] wherein it is held that “ In a case, MACA NO.708/03 2 therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability.” In National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)] it is held that “Mere absence, fake or invalid licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” 3. This award was passed in December 2001 and the dictum to be followed were not available at that point of time. Now the matter is clear by the above two decisions referred to and therefore the matter requires reconsideration in the light of the apex court decisions. 4. Therefore the appeal is allowed and the award passed by the court below is set aside so far as it relates to the liability cast MACA NO.708/03 3 on appellants 1 and 2 to pay the amount back to the Insurance company. The court below is directed to consider whether the Insurance company is entitled to be exonerated from the liability and for that purpose the question of driving licence be considered in the light of the decisions referred to above after affording equal opportunities to the Insurance company as well as the appellants 1 and 2 and to adduce evidence in support of their respective contentions and produce documents, if necessary, and then dispose of the matter in accordance with law. I make it clear that the presence of the claimant is not necessary for the disposal of this case. Appellants and the Insurance company are directed to appear before the court below on 2.7.08. M.N.KRISHNAN, JUDGE vps MACA NO.708/03 4 MACA NO.708/03 5 MACA NO.708/03 6