IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 MACA.No. 551 of 2006(G) ------------------------------ OPMV.1853/1997 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/RESPONDENT NO.2: ------------------------------------------------------ A.V. BALAKRISHNAN, S/O. P.K.KRISHNAN NAMBIAR (LATE),MANNIRIKKODE, P.O. KARIVELLUR, KANNUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 3: ---------------------------------------------------------------- 1. K. VIJAYAMMA, W/O.K.K.RAJASEKHARAN, TRIKARIPUR AMSOM, ELAMBACI DESOM, P.O.ELAMBACHI, KASARGOD DIST. 2. UTHAMANTHIL VINOD, S/O.GANGADHARAN, PAYYANUR AMSOM, THAYINERI, P.O. PAYYANNUR, KANNUR DIST. 3. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, MAIN ROAD, PAYYANNUR, P.O. PAYYANNUR, KANNUR DIST. ADV. SRI.M.SASINDRAN FOR R1 SRI.M.SANTHOSHKUMAR FOR R2 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2008 , ALONG WITH MACA NO. 552 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 551 & 552 OF 2006 = = = = = = = = = = = = = = = Dated this the 14th day of October, 2008. J U D G M E N T MACA 551/06 is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV) 1853/97 and the other appeal is preferred against the award in O.P.(MV)1852/97. The claimants in the said cases sustained injuries in a road accident and the Tribunal has awarded compensation with a direction to the owner of the vehicle to reimburse the amount to the insurance company on satisfaction of the award on the ground that the driver did not have a badge to drive an auto rickshaw. So the two points that arise for consideration here are whether a badge is necessary and secondly whether the absence of a badge alone is sufficient to exonerate the insurance company from the liability. 2. So far as the necessity of a badge is concerned admittedly the vehicle which got involved in the accident was a passenger carrying auto rickshaw or it was a vehicle used M.A.C.A. NOs. 551 & 552 OF 2006 -:2:- to carry public. When a vehicle is used to carry public then it becomes a transport vehicle. So in order to drive a transport vehicle the law contemplates that a badge is necessary. The Supreme Court in a recent decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20(SC) held that when a vehicle is used for transporting passengers the rule mandates that there must be a due licence for driving that vehicle. I hold that possession of a valid driving licence to drive a passenger carrying vehicle is a must and if it is not there, it may amount to breach of conditions of policy. 3. Then comes the second question. The Apex Court in the decision reported in Swaran Singh's case, National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) has exhaustedly dealt with the various contingencies that may arise and by summarizing it at paragraph 102 of the judgment, specifically with reference to paragraph 102 (iii) and (vi) has held that mere absence of a licence may not be sufficient to exempt the insured from the liability. To avoid its liability towards insured, the insured has to prove that the insured was guilty of negligence and failed to M.A.C.A. NOs. 551 & 552 OF 2006 -:3:- exercise reasonable care in the matter. On satisfying the conditions of policy regarding the use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. The Apex Court also held that, “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.” 4. These guiding principles had not been followed at all by the Tribunal while arriving at the decision mainly for the reason that the said decision was not available at the time of passing of the award. Therefore the matter requires reconsideration in the light of the decision referred to above. I am informed that the appellant has not filed any written statement before the Court below as he was set exparte and therefore he be permitted to file a written statement after M.A.C.A. NOs. 551 & 552 OF 2006 -:4:- setting aside his exparte order and then permit both the parties to adduce evidence in support of their respective contentions by producing both documentary as well as oral evidence and then dispose of the matter in the light of the enunciated principles laid down by the Apex Court in the decisions referred to above. 5. Presence of the claimant need not be insisted in the case for the reason at any rate the insurance company is bound to pay and only get it reimbursed even if it ultimately succeeds. Parties are directed to appear before the Tribunal on 28.11.08. 6. It is made clear that no proceedings can be initiated against the appellant till a final decision is taken in the matter either by way of execution or by way of revenue recovery proceedings. The MACAs. are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-