IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 MACA.No. 2368 of 2007 ------------------------------- OPMV.99/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA ......................................... APPELLANT/3RD RESPONDENT ----------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., KOZHIKODE, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: PETITIONER AND RESPONDENTS 1 & 2 --------------------------------------------------------------------------------- 1. K.RADHAKRISHNAN, S/O. KUNHIRAMAKURUP, PAYYAMVELLI HOUSE, NEAR BALAVADI BUS STOP, MUTTUNGAL P.O., (VALLIKKAD), PIN-673 110. 2. K.M.BALAKRISHNAN, S/O. LATE VELU, K.M.NIVAS, CHENGOTTUKANDI, CHEVARAMBALAM P.O., CALICUT, PIN-673 017. 3. A.K.MANOJ, S/O. SIVADASAN, KANNOLI HOUSE, KARALADESWARAPURAM, TIRUR, PIN-676 307. ADV. SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 SRI.THOMAS ANTONY FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2368 OF 2007 = = = = = = = = = = = = = = = Dated this the 26th day of May, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Vadakara in O.P.(MV)99/03. This is an appeal preferred by the insurance company and the main challenge is that the Tribunal erred in holding that the insurance company is liable to be indemnified. The learned counsel for the insurance company would submit before me that the accident occurred on 8.11.02 and licence to drive a transport vehicle was obtained only on 18.11.02 and therefore there is no valid driving licence and therefore there is breach of policy conditions which will exonerate the insurance company from the liability. In paragraph 9 of the award the Tribunal has observed that the 2nd respondent is having a valid driving licence at the time of the accident. There is no evidence on record to prove that the first respondent is not having any vehicular documents. Even if for argument sake the contention of the insurance company M.A.C.A. 2368 OF 2007 -:2:- is considered and even going by the decision reported in National Insurance Co. Ltd. v. Kusum Rai (2006 (2) KLT 300), the Apex Court held that, “In a case, 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.” 2. So there must be evidence to prove that the owner knowing that the driver is not having a valid driving licence deliberately gave vehicle for driving then only one can say that there is breach of policy conditions. The Apex Court has again referred to a decision of a three Bench decision reported in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781(SC) where also the same principle is laid down. Therefore I cannot accept the contention of the learned counsel for the insurance company. The appeal, therefore, lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. ul/-