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. 1100 of 2009(A) -------------------------------- OPMV.468/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- NATIONAL INSURANCE COMPANY LTD., REP.BY ITS MANAGER, REGIONAL OFFICE 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION, KOCHI 35. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): 1ST PETITIONER & RESPONDENTS ------------------------------------------------------------ 1. ABDUL AZEEZ @ AZEEZ.S/O.HUSSAIN, M.S.HOUSE, BANDIYOD, MANGALPADY P.O. 2. B.A.KHADER, S/O. ANDUNHI,SUHANA MANZIL BERIKA, MANGALPADY 3. SALVADORE LOBO,S/O.MARSHAL LOBO, MARDEMBAIL, CHENGALA, KASARAGOD. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1100 OF 2009 = = = = = = = = = = = = = = = 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)468/98. The claimant, a pedestrian, sustained injuries in a road accident when he was hit by a passenger auto rickshaw. The Tribunal awarded him a compensation of Rs.57,744/- with 9% interest and directed the insurance company to deposit the amount. Aggrieved by the decision of affixing the liability the insurance company has come up in appeal. 2. The facts of the case would reveal that the vehicle involved in the accident is a passenger auto rickshaw. The driver did have a licence to drive but did not have the requisite badge. The Tribunal held that absence of a badge is only an offence under the M.V.Act and that it will not detract the liability of the insurance company and therefore made the insurance company liable to pay the amount. I am afraid that the Tribunal has not understood the purport of the M.A.C.A. 1100 OF 2009 -:2:- requisite of a valid badge in driving the vehicle. The Sections which deal with these matters are S.2(47) of the M.V.Act and S.3(10) of the M.V.Act. U/s 2(47) of the M.V.Act a transport vehicle is defined and it means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. The auto rickshaw is a public service vehicle and therefore it comes within the definition of a transport vehicle under the M.V.Act. In S.10 of the M.V.Act prior to its amendment by Act 54 of 1994 clauses 'e' to 'h' deals with medium motor vehicle, heavy motor vehicle etc. By virtue of the amendment, such as 'e' to 'h' were deleted and the word 'transport vehicle' was introduced as 'e'. Then the next question is u/s 3. U/s 3 of the M.V.Act no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle, and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. So unless there is an endorsement in the driving licence authorizing the person to drive that particular type of M.A.C.A. 1100 OF 2009 -:3:- vehicle namely an auto rickshaw carrying a passenger one cannot hold he is having the requisite authority to drive the vehicle. So there is a clear violation of S.3 of the M.V.Act. A person can drive the vehicle under the terms of the policy only when he is duly licensed and in the absence of due licence there is breach of policy conditions and therefore the insurance company has got a valid defence u/s 149 of the M.V.Act. In this case admittedly the driver did not have badge. The Hon'ble Supreme Court has also considered this point in the decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20 (SC) and held that due licence as envisaged u/s 3 of the M.V.Act is necessary. Therefore there is a valid defence for the company. 3. Now the next question will be what shall be the direction. A poor pedestrian is hit by an auto rickshaw. The auto is driven by a person not duly licensed, but the purport of the benevolent legislation is to safeguard the interest of the third party and therefore the insurance company cannot M.A.C.A. 1100 OF 2009 -:4:- be allowed to plead total exoneration but should be directed to pay the award amount to the third party and get it reimbursed from the owner. Or in other words on satisfaction of the award in favour of the claimant the insurance company shall be entitled to get it reimbursed from the owner of the vehicle. In the result MACA is partly allowed and the finding of total liability of the insurance company is modified and it is found that the insurance company on deposit of the entire award amount in favour of the claimant is entitled to realise the said amount from the owner of the vehicle by execution of the very same award. M.N. KRISHNAN, JUDGE. ul/-