IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 MACA.No. 503 of 2009() -------------------------------- OPMV.18/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): 3RD RESPONDENT -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD,VADAKARA, REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE,ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): RESPONDENTS 1 & 2 -------------------------------------------------------- 1. KUNHASSAN, S/O.KUNHALAVI,RESIDING AT MANTHODI,POOKKOTTARA,MALAPPURAM DISTRICT. 2. SHYJAL, T.V., S/O.ABDULLA, RESIDING AT THAZHATE VATTARAMBATH HOUSE,P.O.KEEZHARIYOOR, KOYILANDY TALUK. R1 BY ADV. SRI.V.RAJENDRAN SRI.P.SAMSUDIN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.503 OF 2009 ............................................. Dated this the 27th day of October, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Vadakara in OP(MV)No.18/1998. The claimant while getting down from an auto rickshaw, a jeep came and hit on him resulting in injuries to him. The Tribunal awarded him a compensation of Rs.77,603/= and directed the insurance company to pay the amount. It is challenging the liability of the insurance company at least with a right for recovery, the appeal is preferred. 2. Heard the learned counsel for the appellant as well as the respondents. The vehicle is coming under the definition of a motor cab. It is also coming within the definition of transport vehicle. Therefore there must be due authority to drive vehicle. 3. Admittedly there is no badge for the driver. Whether that will amount to breach of the policy condition is the short question that arises for determination in the appeal. It is true that in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781 SC), it has been held that mere : 2 : M.A.C.A.NO.503 OF 2009 absence of licence ipso facto does not amount to the cause of accident and if it is not the cause of accident whether the insurance company can be get exonerated from the liability is the matter for consideration. There are also line of decisions where it is stated that badge is not required to consider the question of breach of the policy condition. 4. Now by virtue of the decision in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (8) SCC 253), the Supreme Court has made it very clear that the driver should have the appropriate licence to drive vehicle. So what is the appropriate licence would be the next question for consideration. Section 3 of the Motor Vehicles Act clearly envisages that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. Badge is a particular authority issued by the transport authority entitling that person to drive a vehicle i.e., the particular class of vehicle which is he using. : 3 : M.A.C.A.NO.503 OF 2009 5. As stated by me, the vehicle involved in the case comes under the definition of motor cab and transport vehicle and therefore it is mandatory to have badge to drive the vehicle. In the absence of the badge it cannot be held that the driver is duly licenced to drive the vehicle. When it is so it amounts to breach of the policy condition and therefore the insurance company by virtue of the clause is entitled at least to get the reimbursement. 6. Therefore I modify the award of the Tribunal and hold that on satisfaction of the award the insurance company is entitled to recover the amount from the owner by execution of the very same award. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.503 OF 2009 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T